In this earlier post, it was explained that because Joe Biden’s OSHA vaccine mandate did not go through Congress for a vote, the mandate cannot be constitutionally considered law, and therefore the U.S. Supreme Court is therefore obligated to rule it as constitutional, which they mostly did in the final ruling. Harmeet Dhillon ended up being correct; the Supreme Court ruled that Biden’s mandate cannot apply to private enterprises, but can apply to healthcare employees whose employer receives federal funding. However, it is critical to understand that Congress has limits to what it can legislate, and those limits to what Congress can legislate are indispensable for the preservation and survival of liberty, and thereby, civilization too. Without limits to what Congress can legislate, then Congress can theoretically vote to end the first amendment, as well as all other amendments and protections to fundamental individual rights written in the U.S. Constitution. This is wrong, and therefore, just like there are laws and rules for the citizens, the President, and even the Supreme Court justices, there are laws and rules for what Congress can and CANNOT legislate; Congress CANNOT legislate anything that violates fundamental individual rights and liberty, with no exceptions, even emergencies, even the COVID-19 pandemic.
Joel Skousen says it best in Essential Principles for the Conservation of Liberty. “because of the potential for personal corruption in leaders, as well as other foibles of man (intellectual arrogance, excessive deference to people etc.) it is never enough to trust even a majority of representatives to safeguard fundamental liberties. The genius of the original American system was to actually limit the majoritarian powers of the people’s representatives. This way, even a bad or corrupt majority could not make an unjust law–such laws were either prohibited outright by the constitution or put off-limits by the “enumerated powers” clause (that the government only possesses specific enumerated powers, and nothing more). If strictly construed, it leaves no room for government to assume new powers. If it isn’t specifically listed, they can’t do it, no matter how popular. But sometimes bad law (especially of the social spending variety) become so popular that the representatives are pressed upon to amend the constitution to add such powers to the enumerated list. This is why it is clearly not a sufficient safeguard to place one’s fundamental rights under the ratification and amendment process of a constitution.“
Inserting my comments, the enumerated powers clause must be strictly construed to limit the possible powers the government can assume to only those enumerated powers. Otherwise, if the enumerated powers clause is not strictly construed, there effectively is no limit to the powers that the government can assume, thereby leaving dangerous room for the government to assume powers that violate liberty and fundamental individual rights; whenever government has any such room for that kind of tyrannical power, the government will always assume such power and will always fail to listen to conscience and also fail to resist the temptation to tap into such great and tyrannical power. This is the sad reality of human nature. To continue the Skousen quote below:
“Most Americans labor under the mistaken assumption that our Constitution safeguards all fundamental rights in the Bill of Rights. But this is not true. The founders were very fearful of making a list, concerned that something might be left out (very excellent point by Joel). So they left all “residual rights” to either the States or the individuals–a dangerous piece of general wording. Naturally the states took all the rest since no single individual has the power to demand and defend his residual rights, not being as powerful as an organized institution. At the same time, through poor education, we have almost universally lost all recognition of fundamental rights. No formal criteria or definition is found in the Constitution. Perhaps, even worse, people have also become accustomed to view existing law or interpretations of law as if they are the absolute “law of the land,” rather than look to the Constitution–or beyond–to the ultimate law, in order to judge the validity of any law. There is a further sense of futility when one sees official injustice fortified and ratified by the very courts whose original function was to be a safeguard against such oppression.
In a judicial sense, another purpose in recognizing the supremacy of fundamental rights over statutory law, even exceeding constitutional interpretation, is to reduce the propensity of government officials to rely upon former legal precedents to justify the continued suppression of such rights. This declaration of rights puts all government officials on notice that all laws which violate fundamental rights are simply null and void, and that the burden is upon government to prove that such laws are in accord with fundamental rights. Most importantly, public officials should be aware that they are PERSONALLY LIABLE for any infringement of another’s rights, and that men may ultimately and rightfully defend their fundamental rights with appropriate force, when no practical or fair legal recourse is possible.”
As mentioned earlier, it’s very challenging to list ALL fundamental and sacrosanct rights, but once again, Joel Skousen does the best and most comprehensive job that I’ve seen, so I’ll copy and paste his thorough list below, once again from Essential Principles for the Conservation of Liberty. If I discover any rights omitted by Skousen, I’ll surely include them to the list below; if anyone reading this also thinks of any omitted rights, please feel free to contact me through the Contact Me page of this blog:
FUNDAMENTAL RIGHTS:
You will note that I have not used the traditional words “inalienable rights.” The reason is simple. The founders used the word (incorrectly, I believe) to mean that government could not rightfully violate those rights. But the word “inalienable” comes from a flawed religious doctrine that implies that man cannot give away or alienate from himself anything given from God—such as rights. This, however, is not true, as applied to fundamental rights. A person CAN give up these rights, as long as it is done under the terms of voluntarily contract.
One may enter into a contract, for example, to put himself into a non-free condition. This does not constitute slavery when it is done voluntarily, although the results may appear similar. We do it, to a degree, every time we sign a mortgage where we place our income and our property in jeopardy for a specific time. Or, as in a prepaid contract for performance, (where one accepts a large sum of money advance of performance), one would be obligating himself to serve the other party till the contractual obligation is complete. This is a type of temporary bondage we enter into voluntarily because we receive mutual benefits. These other benefits compensate for our temporary lack of freedom. In other words, we choose to temporarily trade some of our freedom of action in order to gain other benefits. Whether such exchanges for “rights” for benefits are done wisely is another question, but the freedom to do so is clear.
The key to understanding what constitutes a true fundamental right is to focus on this essential criteria: for a right to be true, it must be non-conflicting with all others simultaneously claiming such right, and must not require that anyone else serve your needs in exercising that right.
FALSE RIGHTS: There are many false rights being promulgated in today’s society, mostly due to the politician’s attempt to entice voters to view benefits as if they were rights. Three of the most popular are the so-called “right” to a job, “right” to medical care or the “right” to an education. Let us apply these claims to the definition of a true fundamental right and see if they qualify. Remember that the main criteria that determines whether or not an action or state of being is protected as a right is whether or not all men can simultaneously possess the “right” in question without compelling anyone to perform a service in their behalf.
In the case of education, we cannot all receive an education without compelling someone to teach, provide the facilities, the curriculum and the books. Thus education, through others’ efforts, must be a benefit based upon contractual mutual obligations, and not a right–no matter how essential it is deemed by the users thereof. On the other hand, self-education would be a right as long as no one was compelled to assist you involuntarily.
As to the “right” to a job, we may ask, in like manner, if all people can claim a right to a job without compelling someone to provide that job and the money for a salary. Obviously not. In reality, a job is the exclusive property of the employer who owns the money and the facilities. The labor portion of the job is the exclusive property of the laborer. The negotiations as to the rate of exchange for the owner’s money and the laborer’s efforts must be left to the arena of free contract. Neither has a “right” to attach the others’ property or effort–each can only voluntarily exchange what he owns for what he perceives the other offers in return.
Medical care can never be a fundamental right, either, as it would clearly force doctors, nurses and hospital owners to become slaves to those who demand the benefit. You may think they are not slaves because they are being highly paid. But if you, the patients, are not paying, then someone else is, and that person (even if a group of taxpayers) are partially enslaved for the beneficiary’s sake. Someone is always partially enslaved whenever the direct beneficiary of any service doesn’t have to pay, and someone else or some group is not voluntarily paying the bill.
A more complete analysis of all the fundamental rights of man are given in the next section
THE FUNDAMENTAL RIGHTS OF MAN:
FUNDAMENTAL RIGHT #1: LIFE
The RIGHT TO LIFE itself from conception to natural death except as a consequence for a crime against the rights of others.
This most basic of all rights, the RIGHT TO LIFE, is defined as broadly as possible in order to preserve innocent life from external attack. After much contemplation, I believe that life should be protected FROM CONCEPTION since there is, at the very least, a unique life IN THE FORMATION PROCESS. While others would attempt to deny any “right to life” to the fetus because of lack of full and positive scientific proof of “independent life”, it is my belief that where there is doubt, or where error is probable, relative to life, we ought to ERR IN DEFERENCE TO LIFE, not against it.
Some also dwell on the fact that there is doubt as to when the fetus becomes an independent life from the mother. But even a new born baby is not fully independent to sustain life. It would seem more appropriate to base one’s protection of life from conception based upon the fact that unique life, a separate and distinct entity from the mother and father, is IN THE FORMATION PROCESS. It is not particularly relevant whether it is independent yet of the mother or not.
ABORTION: Let’s consider the case of abortion carefully. As in all the most difficult cases of law, we are faced with an apparent conflict of rights here, between the mother and the child. But upon close analysis, there is no such conflict, for each party to the conflict is exercising rights during different time frames. First, both mother and father, under voluntary circumstances, have already exercised their right when they chose to engage in marital relations–which was previous to the new child’s existence. Like all other rights involving positive acts, freedom may, and usually does, become linked to consequences which the acting parties are bound to accept as part of the responsibility for those actions as they affect others. This is always true where an innocent third party is directly affected by such an act. In this case, because a child has been engendered, the parents are both obligated (not just the mother) to the engendered child in nurturing him or her to the point of self-sufficiency.
Since the child is the innocent affected party, being engendered by the acts of others, his right to preservation must be held superior to any desires of the parent or parents to terminate the pregnancy, especially for reasons of mere personal convenience. There is no right to terminate the pregnancy any more than there is a right to terminate any other voluntary contract or involuntary consequence of a responsible act which affects an innocent third party. Therefore, there is no “right” to an abortion of convenience, though there may exist some circumstances where the prosecution of this violation of the right to life can be distinguishable both in seriousness and intent from murder.
There are certain instances where there IS a legitimate conflict between the rights of the mother and those of the fetus. In the rare case where the life of the mother is clearly in danger due to the pregnancy, the mother, having a fully developed existence in life already, should be accorded the superior standing.
The cases involving rape, involuntary incest or other violations of rights of the mother, which results in pregnancy, are not so clear. What is clear is that where there is no attributable responsibility for the pregnancy to the mother, she cannot be forced to bear the consequences. Put another way, the fetus is a direct result of a crime, though not a knowing participant in the criminal act. The fetus is still as innocent as the violated woman and thus does not necessarily deserve to lose its standing to the right to life. Here then is a clear conflict of simultaneous rights. But the resolution of the problem is not so conflicting. In most cases the fetus is acting upon the mother in a manner which is only inconvenient and laborious, and yet on the other hand, an abortion against the fetus would be FATAL. The fact that she has previously been wronged does not necessarily justify the killing of the fetus, especially when the mother is not facing a commensurate conflict to her right to life.
Most arguments surrounding this issue stem from desires to be rid of any remembrances of the evil act. Though I do not want to denigrate the reality of such emotional pain, I believe it is resolvable in almost all cases without abortion. While I would clearly favor the bearing of the child, with the option of placing the baby in an adoptive home, I would not favor the prosecution of a mother who chose not to bear the child in this case. Because there are such closely conflicting rights, it ought to be left as a matter of conscience, leaving the final judgment to God. This is an example of an area of legitimate difference between people who still agree on these basic principles.
CAPITAL PUNISHMENT: As to other ramifications of this right to life, this right may be placed in jeopardy when a person is engaged in violating another’s rights. The second part of the statement stipulates the essential condition upon which one may lose his life involuntarily. The right of self-defense can sometimes justifiably end another’s life or a capital crime may be punishable by death after prosecution by the due process of legitimate authority, as determined by constitutional law.
This first fundamental right does not preclude the use of capital punishment. All of the fundamental rights of man are only valid insofar as one is not acting to violate another’s right. Since one clearly has the right to defend oneself to whatever degree necessary to eliminate the threat, the possibility of death being meted out as the consequence for aggression is also clear. One cannot claim all of his fundamental rights while in the process of destroying another’s rights. That is why treason is usually a capital crime when acting to destroy a government which is legitimately defending fundamental rights. Revolution against a tyrannical government, however, is not treasonous.
The larger question in capital cases surfaces when the aggressor is caught after the fact, and he is no longer in the act of aggression. Death can and should be applied insofar as the criminal is still a threat to the right to life of others. It is clearly the most complete deterrent to this person acting again to violate another’s life. Surety about a criminal’s future disposition to do evil is difficult to determine except by multiple, competent witnesses to such threats. However, a fairly clear predisposition to criminality is demonstrated by the occurrence of a second offense. Imprisonment should only be used for criminals with clear remedial potential and should be self supporting by the labor of the inmates so as not to act as a violation of the property rights of law abiding citizens.
There are certain COROLLARY RIGHTS TO LIFE that are related to man’s innate characteristics surrounding life: the ability to think, believe, and reason–all in some ways distinguishable from rudimentary life itself. Every person has a right to his own mind, to believe, reason and think as he wishes. Only his actions based upon those thoughts can bring him into conflict with others, and make him subject to consequences. In reality it is nearly impossible to deprive a person of his beliefs, or his thoughts. Therefore, one may ask, why state them as rights if they can’t be violated?
The answer is found mainly in the grave dangers associated with new developments of mind control. The use of mind altering drugs and electronic manipulation of certain physical and emotional characteristics of the body are becoming more prevalent in totalitarian societies. Such physical threats, or other involuntary bombardments or harassment of the mind are a violation of the following corollary rights to life. However, the use of psychological devices to induce a response to advertising is not a violation since it is not involuntary. If you choose to watch television programming and its advertising, you shouldn’t complain if you are affected by them. Open public advertisements, especially on public highway systems does not qualify as strictly voluntary and can be regulated, since one cannot easily avoid looking at it.
COROLLARY RIGHTS:
A. The right of free THOUGHT and JUDGMENT on the individual worth of ideas, people and things.
The very essence of freedom is the ability of men to make judgments concerning the relative merits of the ideas, people and things we encounter in life. Man is not completely self-sufficient and is therefore constantly searching for favorable items to enhance and provide for life. Despite our reluctance to accept the judgmental nature of our minds, we do, in fact, make thousands of judgments automatically each day. Our minds classify everything we see, hear, and feel about people, ideas and things, within seconds of input, without much conscious effort. Because there is a natural tendency from insecure elements of society to demonstrate hostility toward this freedom of judgment, it must be duly protected by law.
A major feature relating to freedom of judgment: just as in the free market of economics, we demand our right to judge the value of a product and offer value accordingly, so there is an identical free market in the judgment of other people and their relative worth. That is what you do when you judge the relative worth of another’s service potential. Services are the reflection of our desire to work together in the sharing of specialized skills–as a way of improving our leverage over the insecurities of life. The fact that specialization exists as a natural outgrowth of free labor is prima facia evidence of the innate inequality of man. In reality, it is a blessing, not a curse, due to the wide variety of labor tasks needed in the world.
When you are bidding for labor or a service, you are actually bidding for at least a portion of that person. You are making a judgment mostly pertaining to his specific worth related to the service, but his total true worth can also play a large role. Many an employer has selected a man of lower specific skill as a welder, for example, because he manifests a good personality, is honest and appears to have a stable personal family life. While others may protest vigorously that their personal life has nothing to do with their welding skill, the employer would disagree, as is his right. He doesn’t want the hassle of hiring people every month or so. The more stable the lifestyle of a person, the more cost efficient is his investment in the laborer. Simply because the employer may not be able to legally define what he views as “a stable lifestyle” does not detract from the reality that he can recognize things that he believes, even subconsciously, are representative of stability. That brings us to class judgments.
CLASS JUDGMENTS:
A person’s mind, as part of its self-protective function, classifies certain characteristics he views in others as good or bad, safe or dangerous, etc. We place people who share common characteristics with others into generalized groups, or classes, to facilitate quick recognition of those same traits if they should appear again in someone else. This is what constitutes a “class judgment.” Everyone makes them, even those who try their best not to consciously recognize that fact.
Class judgments are not necessarily evil. They can be either good, bad or in between, depending on the accuracy of the person making the judgment. Being open minded or non-prejudicial is not fooling oneself into thinking he doesn’t make class judgments, but in consciously being open to new input, and constantly “cross checking” with other input to either confirm or revise one’s opinions. A fair minded person always recognizes that no matter how consistent certain classes of people seem to be, there are always exceptions, inducing him to keep an open mind.
Personnel managers and employers use highly sophisticated class judgments constantly to enhance their ability to select new employees. When a certain manner or way of dress shows a history of instability, a competent personnel manager consciously or subconsciously begins to avoid selecting those types for interviews. While some may protest that he is forming prejudices, let us remember that his time to interview and make decisions is limited. When an employer is prohibited from making class judgments, such as requesting a certain class of people from an employment agency, he is robbed of his time, which is money, which is property; the ownership of which is a fundamental right. He is then forced to interview many more people than he normally would if he were free to pre-select generalized classes of applicants that, by experience, promise a higher rate of success.
THE RIGHT TO MAKE PRIVATE DISCRIMINATIONS: The benefits of making class judgment are clear to the person who is busy and far outweigh the mistakes that occur in closed-minded people. But no one has a right to demand that he or she be judged according to any certain standard–this is always a matter of conversion and negotiation. You have to convince others of your worth. Even though some won’t give you the time to do so, you do not own his time and cannot force anyone to give you an interview–no matter how “unfair” you think it is. You can always go elsewhere and usually find someone who is willing to recognize your true worth. Remember that people of really high worth are rare and high worth employers are always on the look out for them. The trouble comes when a person may have high general character worth, but he is seeking a common job where there is a lot of equally qualified competition. It is easy to get lost in a big sea, no matter how valuable you may be. So upgrade your skills and find a smaller niche.
There is a reason why anti-discrimination laws are damaging to minorities in the long term. The more government tries to force employers to hire minorities, the more strongly employers are convinced minorities are an undesirable class of employees. Even if government prohibits the free exercise of judgment, it can never stop people from making those judgments in their mind. When government tries to enforce equality of results in the name of “opportunity”, freedom of choice is quickly replaced by reverse discrimination.
Unfortunately, the more the judgment process is driven underground, the more mistakes people make in those judgments. Eventually both employers and minorities are harmed as business suffers from bad employment decisions and other employees become hostile to the reverse discrimination, widely mandated by liberal courts.
Laws which deny to a person the right to act upon his class judgments, especially concerning race, and gender have wide acceptance. But whether or not you agree or disagree that a person can come to some rational, general distinctions about people relative to race, religion, or sex, is irrelevant. The essential point relative to freedom is whether or not it is proper for government to restrict private judgments in this or any other area where no rights are violated. Once we allow government, by law, to attack some judgments, there is no way to protect any other class judgment from attack.
When government has the arbitrary power (and it is ARBITRARY) to select which class judgments are evil and which are acceptable, there is absolutely nothing to prohibit politicians from expanding that list to protect fat people, crazy people, aids infected homosexuals or Marxists from private class judgments. Note that while the principles of liberty allow people the freedom to engage in private, voluntary evil practices, it also protects the right of others to judge them as evil, even for their private acts, and to exclude them from employment or association. Neither does the public sector have to accept all forms of conduct. Like any other association, it can set down guidelines and rules of conduct based upon the limits of the originating by-laws agreed to by the majority of citizens. Nobody has a “right” to a government job any more than a private one.
Thus, while it is almost impossible, short of damaging or drugging the mind, to stop a person from making judgments, man has sought, by use of improper law to stop the exercise of free judgment. When the exercise of free judgment, even when discriminatory, is prohibited, the essence of free thought is lost as well. In the final analysis, the prohibition of the exercise of free judgment is generally a violation of the following rights involving freedom of action.
FUNDAMENTAL RIGHT #2: LIBERTY
To ACT without external or prior restraint when those actions are not in direct and harmful conflict with the rights of others.
This is the basic law of freedom–the right to do anything in the pursuit of “life, liberty, and happiness”, including that which others may think dangerous, or harmful to SELF, as long as others’ fundamental rights are not infringed in the process.
I want to make it perfectly clear that I do not condone or approve of the evil actions that some persons perform with their freedom to act, but we must clearly defend their freedom to fail, to make wrong or even evil choices, so long as others are not compelled to participate. The price of freedom is that we must allow people the liberty, within these bounds, to make poor judgments.
Additionally, I do not wish to concentrate on the adverse consequences of freedom except to point out that one must be willing to accept a fair amount of “victimless” consequences of man’s poor judgment in order to preserve the freedom of those who exercise good judgment. Private drunkards will fail to care for their families properly and children will suffer. But governments must be limited in their ability to intrude, except in cases of verifiable abuse. To do otherwise, that is, to give GOVERNMENT the power to decide what is good exercise of freedom and what is not–in the absence of visible and harmful damage to others–is to court totalitarian control. One of the most pervasive evils of our day is the government notion that it has the right to protect us from ourselves, even when no victims are caused. I will cover this in more detail under the right to self-responsibility.
VIOLATIONS OF GOD’S LAWS: Some Christians have mistakenly tried to make the point that there are no victimless crimes, and that we therefore ought to have government control of self-debasing acts between consenting adults. Certainly God commands that people abstain from these immoral acts–why shouldn’t government? While it is probably true that personal corruption eventually affects others, especially the family, the law can only “see” what is tangibly visible and distinguishable from proper acts. When we allow law to enter the domain of judgment over voluntary acts (that do not violate the right of any other) , there is NO WAY TO DISTINGUISH (in law) those acts from other voluntary acts without giving government the dangerous and arbitrary powers of specifying which are “approved” or “disapproved” actions. That kind of power can work against good morals as well–especially when immoral people become a majority, or at least rise to positions of power.
I wish to again emphasize the extreme danger here: In order to vest in a ruling body the POWER to declare certain voluntary acts illegal when no victim is clearly distinguishable, when no direct harm or damage (to fundamental rights) is claimed by any individual, one has to allow that ruling body, presumably elected by the majority of citizens, the power to JUDGE ALL VALUES, and to attack those out of favor with “public policy” edicts. Christians, who are the most frequent champions of such government power, should realize that vesting such a power in the majority allows for the possibility that other persons opposing Christian moral values may someday gain the majority and use that same power to declare Christian values illegal or against “public policy.” That may happen sooner than we think.
Before you dismiss this presumption out of hand, think carefully whether we, even today, possess such a majority. I personally don’t believe we have such a majority. Even if we did,
we should never take upon ourselves majority rule powers which we would be unwilling to allow others to equally exercise, should they become the majority.
This way all are protected. Most active Christians have become concerned because Christian values and prayers have been outlawed from public schools. But they forget, that the real evil is that these are not “our” schools–they are government schools, which take everyone’s tax money (which is wrong) and thus any values promulgated will always be at the expense of others left out or undermined. The solution is not for one majority to force their values upon anyone else, but to let each faction support the kind of schooling values they want. Let all schools, public and private be funded only by user fees–then everyone is free to pay for the education values they want. Then no one can complain that his personal values are not represented by his own money. As you can see, law can be either good or evil. It has no virtue in and of itself. Let us wisely consider and limit its potential use by evil men.
USING STRONG DETERRENTS FOR EVIL BEHAVIOR: How, then, does a society of partially righteous people protect themselves from the slow and pervasive evils of consenting immoral acts? Part of the answer is to allow consenting evils, but to vigorous prosecute the participants when they cross that line where they begin to visibly and harmfully affect others. This involves the use of harsh punishments as a deterrent. Since people realize that their faculties are slowed and impaired by the use of alcohol and marijuana, and that the risk is high of making mistakes that could injure others while under the influence, these persons would be most reluctant to use those substances, in the presence of heavy potential penalties. I’m not referring to the token slap on the wrist such as drunk drivers presently receive. I would support very serious consequences, such as treble damages for property damage, and loss of driving privileges as long as the victim was permanently impaired–which could be for life! I would even evoke the death penalty for multiple offenders involving the death of another. This would act as a much more effective deterrent to the harmful results of consenting evil actions than the present costly and ineffective prohibition on sales.
PRIOR RESTRAINT. I am opposed to giving prohibition powers of prior restraint to the untrustworthy and amoral state. Prior restraint is only appropriate when IMMINENT threat to life or property is present. Under this doctrine, a driver of a vehicle could still be stopped and arrested for driving “under the influence” of either alcohol or drugs, since his lack of coherence constitutes an imminent threat to life and property. Imminent means it could happen at any time–a clear and present danger.
By the nature of the diversity of people and belief on the NATIONAL level, the initial unanimous citizen compact of the nation (the Constitution) must be broad enough to encompass all non-coercive beliefs, allowing competition and freedom to determine which values will prosper. That is why these principles do not attempt to define any particular faith or statement of belief, other than to provide a non-coercive, platform of universal laws and rights which allows for all men to pursue religious freedom. This is the same standard the founders of the US Constitution followed. While most were devoutly religious, they did not see the need to force God down the throat of non believers. So, while God is not mentioned in the Constitution, they still attempted to give the people the Godly form of the universal law of liberty.
This way all good men possessing diverse beliefs can unanimously agree and rely upon these principles for a peaceful existence, each having the level of protection from evil that he desires, and all being protected from compulsion and aggression by others, both foreign and domestic.
FUNDAMENTAL RIGHT #3: OWNERSHIP
TO OWN, DISPOSE OF, AND CONTROL ALL PROPERTY AND ASSETS WHICH ARE EARNED BY THE HONEST FULFILLMENT OF VOLUNTARY CONTRACTS, RECEIVED AS A GIFT, INHERITED, OR EARNED IN PROPORTION TO THE APPLICATION OF ONE’S LABOR TO UNOWNED PROPERTY.
The above stated right is generally regarded in the classical sense as the right of PROPERTY. I have chosen to designate it with the term ownership since property in the modern sense usually connotes land, which is an essential but only partial form of ownership.
It is of some interest that, in man, there is only a partial hostility toward ownership. The basic nature of man manifests a tendency to want to keep the product of his labor. Our labor in this insecure world is sufficiently laborious to preclude any casual disregard for work. It is therefore only natural that man does not wish to labor in vain. The concept of wanting to retain the value of the product of labor seems to be innate with man as long as the effort is difficult. In fact, the larger the price in effort and risk, the more dear becomes one’s sense of ownership.
So everyone loves the concept of ownership–for himself. It is YOUR ownership that is up for grabs–at least among unenlightened men. Men and women who have become wise in an understanding of the “golden rule” do not seem to manifest this type of selfish resentment. They understand that hostility toward another’s ownership will ultimately undermine their own. Once again, let’s take a closer look at why socialism is hostile to ownership.
EMINENT DOMAIN: I am so concerned about the subtle and slow erosion of ownership rights, that after long and careful deliberations, I have concluded that legitimate ownership to property and assets must be held as near to absolutely inviolate from forced confiscation as possible. The concept of “eminent domain” is very dangerous, and almost presupposes that government has the highest, or most “eminent” claim on property. This must not be allowed. At best, the government can be given very limited and specific powers of taking, but never general powers of taking for the ever-expandable “public good”. Now, before you go into a frenzy of questions about how we could possibly have such orderly roads and bridges without the power to ‘TAKE’ property by force, albeit with compensation, let me state the basic danger.
What difference is there in FACT (not degree) between the full subordination of private property to “public needs”, and a little bit of taking? There is none, really, except the voluntary willingness of government powers to be “reasonable”–which is dangerous to rely upon.
There is simply no way to distinguish, in law, the progression from a little bit of “taking” for “reasonable” purposes and a lot of taking of property for unreasonable purposes. As long as government possesses ultimate authority to declare some taking by eminent domain as “reasonable”, there are no ultimate rights reserved to the owners of property. It is just that simple. The 1984 Supreme Court decision upholding the Hawaii statutes providing for the forced transfer of private land holdings to other PRIVATE owners for the “public good” is an ample demonstration of this inevitable progression from selective use of “eminent domain” to total eventual confiscation.
Do not be dissuaded from the danger inherent in this situation by some small, historical view that local leaders have heretofore been reasonable. That isn’t the point. First, the leaders legally do not have to be reasonable at all, as long as they at least declare that what they do is in the “best interest” of the public. Almost anything can be justified by the “public interest” or “reasonable” standard if the judicial system becomes packed by political “yes-men.” Second, even if leaders are fully accountable to the majority of citizens as to their reasonableness, it is not even within the rightful purview of the majority to determine what is the “reasonable” taking of another’s property. That is for the owner to decide either by initial unanimous consent to constitutional provisions for taking or in a voluntary form of contractual citizenship where they specifically cede some limited property rights.
Without entering into a necessarily long treatise explaining how an orderly transportation system can be derived through a system of inviolate property rights, I would encourage you to consider that the development of the so-called “order” in which we now live took place not at any single time, in a stroke of a master planner’s pen, but one decision at a time, mostly by free choice, as man made a conscious attempt to harmonize what went before with the future. For that matter, there is still a lot of order to be worked out. Though the free market always takes longer than the power of arbitrary government edicts, the results are always more just.
With all that said, I am fully aware that there are not a few greedy people that would see that their property is the key piece necessary to finish a long highway project–perhaps one that passes through a narrow canyon, where no other route is possible–who would set the price astronomical high sufficient either to deny the viability of the project or even worse to have their price acceded to and set off simultaneously a wave of hatred all property rights, or even a contagious fever of greed on the part of others hoping to do the same in the future. One solution is to make some carefully controlled concessions to public taking with compensation in the citizen covenant, whereby all signers agree to yield property rights in exchange for market value compensation for a very specific list of things (such as major transportation and utility corridors, as narrowly defined as practicable, with the burden of proof upon the government to demonstrate that they have selected the route with the least infringement upon existing developed property).
I would never suggest any broad “public purpose” language as a compromise. Property rights are simple too critical to liberty. This same type of restricted taking of property with compensation could be written into a constitution, but it would be a more dangerous compromise since once you crack open the door of government takings, it is nearly impossible to restrain it from constant erosion. Certainly, placing it in a constitutional framework with stiff amendment requirements (at least 2/3 majority), rather and in ordinary statutory law will help hold the line.
While we, the living, have trouble looking at what exists and envisioning how it could be reproduced without the coercion of property rights, it can be done, with only few exceptions–where the terrain is so unique, and where it leads to few or no alternative transportation and utility route, or where critical water rights, are concerned. The secret of resolving much of the current planning problems involving critical resources is found partially in the necessity of all citizens and officials to know IN ADVANCE the strict limits of public takings of property, and the full nature of compensation required. Thus all levels of government are forced to plan further ahead and choose with greater foresight optimum areas for critical public works and other areas for alternative development when the costs or the obstacles of an ideal area are too high.
In roads for example, I would limit the power of taking to only major highways. These are the only ones where fast speeds and zig-zags around property holdouts would be very difficult to implement efficiently without the power of taking with compensation. In the case of smaller, slower roads, those who won’t ever sell rarely hold up progress since there are very few instances where only a single route is possible, or when the road can’t wait to go through later on after the person holding out passes away or moves on. Even in such cases, if the cause is just, do not forget the power of persuasion generated by wide public support for community projects that do not involve wrongful taxing authority. Nothing adds insult to eminent domain injury more than having to pay through increased taxes and bonding for the taking of your own land.
WATER RIGHTS: In the delicate area of water rights, I feel it is a general necessity to make water rights highly divisible and flexible so as to accommodate the maximum use of critical water supplies to the most users that increasing technology can apply them to. This is particularly applicable to dry locations where water is a scare resource. But I feel it important to restrict these public controls of water rights to the very minimum required to deal with drinking and crop irrigation functions.
First, when a river crosses numerous different property boundaries, the water rights of the flow at any given time should be equally distributed among the properties along the entire length of the river combined with some factor involving the amount of agricultural land physically connected to the river, out to a specified limit. When such a rule is applied uniformly and equally to all adjacent river owners, they are then free to sell unused portions of their water rights to other users not directly connected to the river. Distant cities would either have to own some river property or negotiate with river property owners to secure water from such a source.
Second, when a water source does not exit a property, except on rare overflow conditions, the water rights should be not subject to any public allocation. Natural lakes should also be in the full control of the property owners without public say. However, man-made lakes should be subject to approval of the structural elements of the dam in order to protect the rights to life and property of the landholders downstream of such a dam. In any case, no government body overseeing a ‘public safety’ issue such as this should have the right to prevail in a dispute, when all of the other owners downstream (whose rights would be affected by a breakage) agree in writing to allow the dam above them. This is based on the universal principle that people should always have the right to accept agreed upon risks without government interference.
Third, fish and wildlife rights should be limited in their ability to impinge upon property rights. A case can be made for the public right to maintain “free passage” for fish and other aquatic wildlife up and down a river or lake to which their were native. But their should be no “free passage” allowed for members of the public who wish to hunt or fish. This would allow excessive access of the public to private property and would make it nearly impossible for an owner to secure his property against unwanted intrusion. Thus the public would be free to fish and hunt by contractual agreement or by the public purchase of access (if done with an appropriate use fee and no general tax funds). Naturally, since barriers would not be allowed to be erected that prohibited fish movement (dams without fish ladders, for example), the public would still have fishing privileges, though more limited than present.
WELL WATER: Well water, where it was drawn from a water table that can be demonstrated to affect other well water users, would have to be controlled by either a contractual association of well users or a representative body of such users. It is never proper for a broad based public regulatory body to regulate something that can be controlled by a legal association of the property owners directly affected. I understand that no one is perfectly able to determine the limits of an underlying water table, but certainly there are situations where it could be determined without a reasonable doubt that a certain well or well would not have adverse affect beyond a certain general range. For example, a ranch that occupies an entire valley with its own aquifer table should not be subject to state or county well permits. For a ranch the size of the King ranch in Texas (hundreds of miles square) an unlimited well access would be appropriate, we may presume within 25 miles of its boundaries. This would generally ensure that other adjacent owners would not be adversely affected by the unlimited water use within the larger ranch’s core area. Border areas would be subject to regulation as to number of wells and amounts pumped. The burden of proof in taking regulatory control of well use should be on the agency–not on the well user to prove he isn’t affecting someone else.
TAKINGS BY CONTROL and REGULATION NOT ALLOWED: Note carefully the completeness of the ownership statement in the statement of property rights and principles. It is not enough to have title alone. One must have the control of the property and the right to dispose of it. Many land-use laws today have violated the value of property by allowing someone to maintain title and pay the taxes but deny the owner the right to build on it, farm it, mine it, or sell it. Even those land-use laws that allow such uses still require prior approval, with the land-use authority holding the ultimate authority. Not infrequently such ultimate authority results in outright denial of use–the same as if the property had been taken–only THE OWNER STILL PAYS THE TAXES. Obviously, ownership is a liability under those conditions, not an asset. Such actions are totally prohibited by the foregoing statement of rights except where the use of property would infringe on another’s right. For example, burning noxious or hazardous materials on one’s own property could be a direct violation of another’s property rights if harmful fumes were to travel across property lines and cause illness or air pollution. The same would apply to toxic chemical or fertilizer leakage into a stream that passes through other’s property or into the water table.
NO SUCH THINGS AS “VISUAL RIGHTS”. On the other hand, unsightly visual uses of construction on property would not be a violation of another’s rights, since no one can possess a right to a particular view, whether scenic or otherwise. The reason is simple. A view can be seen by numerous separate property owners at once. Each person cannot possess the same rights to that view simultaneously with the others. There is no way that the law can arbitrate between differences of opinion on the relative merits of a shack, for example, on someone’s property. A shack to one person may be another’s “historical relic.”
Furthermore, even if all other surrounding owners could agree on the merits of a view, to be given the power to control the view, would require the power to control the physical elements constituting that view–meaning the private property itself. That would give every property owner control rights to every other property around him, within view, which would be an impossible situation of interminable conflict.
That is precisely why, in the relatively new area of law dealing with protecting scenic areas, no rights are really afforded either to the surrounding property owners or the public. All effective powers go to the arbitrary, appointed commissions (panels of laymen and “experts”) who make the final decisions. Do not be fooled by the environmentalist promotion that the “public” controls the view under scenic protection laws. The “public” may have input to the authorities, but only the ultimate authority has any power. Such a commission or panel has full power to totally disregard the public input, which is never uniform anyway. For purposes of political justification, however, these panels can always find or induce someone to provide “public input” which matches whatever outcome the commission wants to enforce.
There are no scenic rights except to he who owns the property on which the scene exists. To state otherwise would give every traveler conflicting rights with every other traveler over every piece of land deemed too pretty for private ownership.
The ultimate result of the absolute protection of property rights is that new property buyers would make their purchases with the full realization that whatever view surrounds them can change, and that they cannot control that change without either outright purchase or restrictive covenants signed beforehand by all area property owners. The restrictive covenant is nothing less than a partial form of a covenant society, covering little more than aesthetic aspects of property rights.
In the final analysis, remember that without ownership rights, few other rights exist. How can one act with any autonomy if he does not own or control the property upon which such action rests? How can one contract if nothing is owned? Without ownership there is no way of establishing or maintaining the concept of just possession. Without a sense of possession, men lose the incentive to work.
COROLLARY RIGHTS to FREEDOM OF ACTION that are dependent upon property rights:
INTRODUCTION: There are many corollary rights relating to the freedom to act, which are limited to participation in property rights. Throughout the following discussion of corollary rights, you will note the use of the word “contractual property.” This simply refers to property which, by either verbal or written contract or permission, you have use or control.
Under these principles, “public” property would refer to the property owned by the association of all the citizens who have formed a certain government entity, whether city, county, state, or nation. Each level of government can, like any other association, purchase and hold property as long as it is done without coercion, and only by the use of the funds of the covenant members themselves.
Under this contractual concept, public property is not free, nor is it able to be used in an uncontrolled manner. Since it is governed like an association, there are rules and by-laws which establish some type of representative majority rule. That body, in accordance with the bylaws, can set rules pertaining to the use of that property, including limits to any of the following rights, which are always dependent upon property use rights.
- To BE FREE FROM BEING ACTED UPON or involuntarily influenced, in a harmful manner, when on one’s own or contractual property and not directly and harmfully affecting the rights of others.
This conditional right, which is the reciprocal expression of the freedom to ACT–declares one’s freedom from being ACTED UPON when not interfering with others. In this fundamental right is found the essential justification for all laws prohibiting aggression and compulsion by either individuals or government when one is acting within his own sovereign area of ownership or control, and other’s rights are not infringed.
It is carefully worded so as to preclude the false interpretation which would lead one to believe he has the “right” to make all other human beings disappear from the face of the earth “because they are influencing me.” Such influence must be harmful, and against your rights (not will or desires alone) while on your own, or contractual property.
In the case of public property, one does not have all the same rights that may be possessed on one’s own private property. When on any contractual property (including public property or in any activity governed by the rules of an association or contract) one has only as many rights as have been contracted for, or retained while under that temporary jurisdiction.
For example, under a proper governmental association, public roads could exist as long as they were developed by voluntary contractual principles (using user fees and specific road taxes). Those paying the appropriate individual toll or yearly fee, to use the roads, would be considered contractual owners, and would have the right to not be involuntarily and harmfully influenced from such a vantage point, as long as the contract for participation in the public system did not preclude such rights.
Here is how this would work in a few specific areas: This principle could prohibit the showing of outdoor drive-in movies where persons, not contracting to view the show, could accidentally view material that would be directly harmful to them, or their children. An objection could be lodged against a theater showing sexually explicit material since it can be demonstrated to be harmful to the proper moral development of children, and even harmful to adults who wish to maintain a mind free from corrupting thoughts or memories. Even if it could not be “proven” to be harmful, property rights include the protection to be free from acted upon adversely by other’s actions. Certain sexually explicit material is acting adversely upon those who do not wish to view it. This is especially an appropriate objection when the offender can easily avoid or ameliorate the unwanted intrusion.
JUDGMENT ON CERTAIN MORAL CONFLICTS: It is not my intent to delve here into the difficulties of determining in law what constitutes “explicitly harmful sexual material.” As in this case, there are aspects of prosecution such as the determination of “harm” and “intent” which must remain in the realm of judgment, since they cannot be explicitly defined in words alone. It is true that such concepts can be guided by legal criteria, but the ultimate judgment will probably always remain in human hands, imperfect as they are. That is why we still have to have judges in law, though we try to avoid giving them wide discretion. If sexually explicit material could not be legally shown to be harmful, those objecting, or who still believe it harmful even in the absence of legal proof, would have to seek the protective exclusion found only in a smaller covenant society, were high levels of protection from voluntary influence can be had by mutual agreement
Liberty can best be preserved in these areas requiring human judgment if the specific determination of what is harmful influence is made at the local level, by an elected judge, and where those judgments are not given any judicial weight outside the local jurisdiction, and where private viewing of such materials is not infringed. This allows a majority in a local community, through the exercise of their franchise (voting for a judge), to indirectly influence a portion of the rule of law (the determination of “harm”), without being subjected to uniform federal or state interpretations, other than general constitutional restraints on the protection of private actions.
This is not to say that LOCAL majorities should be given unlimited license to make any law, as if it possessed some virtue by being only local in scope. As I expressed earlier, there are many types of law which are violations of fundamental rights whether they occur at the local or national level. Here we are referring to those areas of law (such as judgments on “harm”) which are valid exercises of majoritarian law, and recognize that certain aspects of those laws cannot be totally defined by words, thereby necessitating human judgment by local courts of law.
As long as the majority and minority opinions do not become excessively divergent, communities do tend to coexist in peace without falling back on the more exclusive covenant societies. The latter are more protective of uniform beliefs but are more difficult to form since they require initial unanimous consent.
Certain minorities will “vote with their feet” (that is, move away) if they have serious disagreements with the standards constituting what is harmful, and if they are unsuccessful in gaining the assent of the courts selected by the majority. Thus, the ultimate protection of liberty is gained by the freedom to set up a unanimous covenant society for the absolute protection of certain non-compulsive moral values not held by the society at large.
This concept provides the least conflict between different moral values since each major group representing different moral values would tend to seek their own local autonomy rather than compel others to meet their own particular standards. When conflict is reduced and free competition is encouraged, the several groups are more inclined to cooperate in areas of common concern–if a national structure exists that allows for fair and proportional representation on national issues.
The foregoing discussion of control over an outdoor theater is not a contradiction with the discussion on scenic “rights”, wherein I concluded that no one can “own a scene” not on his own property. In the “scenic pollution” conflict of a neighbor building a shack, no rights are violated since there is no right to a view, nor was there any direct damage to the person himself, moral or otherwise. Now, there are those who claim he has been directly damaged by lower property values. But the so-called “damage to property values” argument is fallacious since there is no right to a certain value of a property. Values are matters of opinion, not fact. They are determined by the free negotiations between other prospective buyers and the owner. The potential buyer is a third party, may or may not see it as a detraction of value to this or other neighboring properties for sale. And it cannot meet the test of being both direct and harmful to any victim, even the prospective buyer since the third party buyer doesn’t own the shack or the property next door. If he doesn’t like it, he can buy property elsewhere, or lower his bid to reflect his poor assessment.
There is no way to determine fixed property values in law–therefore they are not adjudicable. However, in the case of the drive-in theater, the damage is direct since sexually explicit material can adversely and directly affect the development of a child, and even the emotional stability of some adults. If the offending shack had obscene words painted on it, one might have cause to declare it directly harmful, but not the shack itself, since the relative beauty or lack thereof of a building cannot be shown to be adversely damaging to the neighbor’s mind.
In a similar manner, billboards can be regulated–but not on the normal basis that they are “ugly”. Even if that were the case, nothing can be regulated because of beauty–as subject far too subjective for public judgment. But when billboards can be seen and read beyond property boundaries they touch upon the right of others not to be unduly or adversely influenced or acted upon on their own or contractual property. So morally offensive materials would be subject to regulation. Size or placement would only be an issue of traffic safety. Potential distraction of certain types of lighting, or wild movements could be regulated if an adverse threat to contractual obligations of the roadway could be proven.
The laws defending fundamental rights should be uniform throughout the nation, being set by the constitution, but individual localities are free to make more explicit or restrictive standards in the area of non-coercive values if done by initial unanimous consent of all citizens in the local community. Lacking unanimous consent, legislation by lawmakers and judgment by the courts is limited to defining and restricting harmful acts to individual and family rights. We must remember that judgment, in the absence of any unanimous local citizen agreement, is strictly limited to protecting fundamental and contractual rights, determining whether direct harm or intent to harm has occurred, and providing just consequences for the guilty and restitution to the victims.
This potential conflict between liberty and harmful influence upon others is one of the difficult areas in law to properly resolve. By deferring toward liberty when in doubt, and only exercising legal judgment where harm is clear, we hopefully avoid any real substantive conflicts in an open, majority ruled community. What moral value conflicts still remain are then best resolved by smaller subdivisions of the community being formed, under the unanimous consent provisions of the law, to clearly prohibit undesired conduct within areas under the new subdivision’s jurisdiction.
THE RIGHT NOT TO BE ACTED UPON (continued):
SELF RESPONSIBILITY FOR RISK
- To be solely RESPONSIBLE for one’s own health, life, education and safety. It is, therefore, not the right or duty of other men, whether by individual or government force, to coerce men to act in any way they may deem BENEFICIAL for another’s welfare, when failure or refusal to so act will not directly or harmfully affect others’ rights outside covenant and contractual relationships.
In this principle we find one of the simple “self-evident” truths about life. Almost everyone would agree that we should all be free to accept responsibility for our actions. /But there are many well-meaning individuals who have taken it upon themselves to act as the almighty protectors of mankind. In this, I am not referring to those who desire to protect people from the compulsion and aggression of others, but those who arrogate to themselves the power to protect people from themselves–using the coercive power of government.
They busy themselves in attempts to keep people from doing things which they may deem unwise and foolish–which is commendable, but only in the voluntary sector. However, when voluntary awareness programs fail, or a major accident happens, they often go to government crying for a new law mandating that people be forced to do something that presumably would ensure such an accident never happens again.
Worse yet, when government agencies hire a full time employee as a fire Marshall or safety officer, for example, each fire or accident in the community becomes a reflection on his job performance. Thus the nature of the responsibility induces the officer to go before elected officials and request additional codes and regulations to control what he feels are unsafe private actions. Freedom becomes the code enforcer’s “enemy” and he, unknowingly, becomes freedoms worst enemy.
Laws such as motorcycle helmet requirements, mandatory seat belt use, and building codes are all violations of this principle. Conservatives have a most difficult time seeing the evil in these laws, simply because they involve safety habits which most of us do voluntarily anyway. Besides, they appear so “beneficial.”
We tend to confuse one fundamental aspect of law when we support health and safety legislation that we view as beneficial. We confuse our feelings of support for the beneficial action being mandated, with the fact that it is IMPROPER TO MANDATE such actions BY LAW.
People say, “I wear seat belts, and I think everyone should,” which may be true. But there is a distinct and very real difference between saying everyone SHOULD versus MUST, UNDER PENALTY OF LAW. We fail to remember that the artificial penalties for transgressing a law inflicts pain and suffering and very real damage, in the form of fines or even potential imprisonment if one resists on principle.
Thus, we must never use law as a means of coercing people to do things that we simply feel are beneficial for them. Once we enter that arena, where we give government the power to determine what is BENEFICIAL for people, we have opened the floodgates for virtual total control of our lives–all in the name of health, life, safety and good judgment–all violations of the fundamental right to be responsible for our own safety.
Remember that being responsible for our own safety means the requirement of accepting the CONSEQUENCES of one’s own poor judgment, and as a society of having the courage to see people’s bad judgment hurt them without rushing to the legislature to stop personal freedom to fail. That means, frankly, that mistakes will occur and that it is our own responsibility to accept those consequences. The presence of occasional consequences is what causes most people to learn by their errors. Judgment increases and people become more wise. The more that government intrudes to “ensure” private safety, the more non-thinking people depend on that supervision, and the poorer their judgments become. Do not take lightly this concept of deteriorating personal judgment in the face of excess codling. It is similar to the unarrestable evil that comes upon society as it shield’s people’s bad judgment in health and financial matters with welfare and disability payments.
In all of this, I am not denying the legitimate role of government in restricting those private actions which damage other people’s rights. That is the proper role of government. But, as a general rule, I prefer deterrence for private bad judgment through letting people suffer the consequences without a government safety net, or “a priori” restraint upon liberty. Additionally, the same restrictions upon government’s intrusion upon family risks apply here as well in order to keep a clear demarcation between family sovereignty and government delegated powers protecting fundamental rights. Some suffer of wives and children must be tolerated in society to shield liberty as a whole from the “ought-a-be-a-law” crowd who would eventually attempt to “license” parents according to some “pristine” sociological model.
My final point on this right is to clarify the language which says that it is not the right or duty of men to coerce others to do what they deem beneficial WHEN REFUSAL OR FAILURE TO DO SO WILL NOT HARM OTHERS OUTSIDE OF COVENANT AND CONTRACTUAL RELATIONSHIPS.
The emphasized wording provides the essential test that restricts a group of citizens, even if in a majority, from imposing their will upon others. Simply put, if refusal to do the recommended or mandated action does not directly and harmfully affect members of that majority, they have no right to mandate such action.
Fluoridation of water supplies provides an ideal example. In this case, if I fail to fluoridate my teeth, and I get additional cavities, this in no way harms another or affects the rights of any other person. Since failure to fluoridate does not directly affect other members of the majority, the majority has no right to legislate its view of what is beneficial for my water supply. This is properly done under voluntary contract rights in a association of private water users, or by unanimous consent of public system users.
Do not be tempted to rely on the flawed argument that government welfare services are increased as people neglect to take care of themselves. Because government illegally improperly attempts to use tax money to give health care to certain persons, in no way gives government the power to start regulating everyone. A one-sided contract, however well-intentioned is not binding, nor gives that person control over another. It’s like a person who, on his own volition, starts paying for your health insurance, and then tries to control everything you do because he is paying for something which you never solicited! In a court of law, you could be free to accept his largess for as long as you wanted and he would still never have any power to control you–simply because it is a one-side offer.
To carry the benefit argument to further extremes, giving government the power to mandate “beneficial” conduct would also allow government to mandate that everyone drink three glasses of milk a day–simply because it may be deemed beneficial. Again, government can only defend against the infringement of rights, it cannot mandate positive benefits or mandate beneficial actions.
Motorcycle helmet laws fall into this same category. Failure to use a helmet only direct affects the user, and thus the majority has no right to mandate its use. If they did have such a right then safety requirements could be expanded in unlimited ways to include special boots, anti-skid brakes, armored clothing and a host of very expensive additions to an inherently unsafe vehicle.
Safety experts can sometimes get indignant when citizens complain about the costs that must be borne to satisfy their demands. “How can one put a PRICE on safety?” they retort. Actually, the price is irrelevant to the fact that even a “free” mandatory safety item would be a violation of the right to be self-responsible in areas which do not affect others directly. But in another sense the price is relevant in that mandatory safety equipment represents a “taking” of property (money). The bigger the cost, the bigger the violation of the property right. While most safety experts are considerate of costs, they are under no legal obligation to act with such restraint. Reasonableness is only a reflection of their desire to keep people from rising up against this type of benevolent tyranny.
Why not ban motorcycles altogether, as some have suggested? The reason is simple: it is each person’s fundamental right to take risks and assume the consequences for his own “unsafe” actions as long as others’ rights are not infringed. Using a vehicle recklessly in the presence of other innocent bystanders is infringing on others’ rights, but refusal to wear a helmet is not.
This area of legislative action I have just described is the most insidious type of lawmaking because most Americans, especially those who use seat belts, and wear helmets, and build homes properly, see nothing WRONG with the law. They fail to realize that what is PROPER FOR THE VOLUNTARY ARENA is NOT PROPER FOR GOVERNMENT to mandate by law. We are dealing here with mandating “beneficial acts” wholly outside the limits on government power.
For the pragmatists who are always asking, how would we protect ourselves against houses and buildings from collapsing and other effects of poor judgment, simply look back into history. The US capitol building was designed and built by unlicensed architects and builders–the free market. At least four of our US presidents, including George Washington, had no formal education–no credentials. Houses are still being built today without any building codes, and they have no greater incidence of problems. People in Oregon and Maryland (as of 1990) don’t get annual safety inspection on their cars, and have no higher incidence of safety-related accidents than states with rigid laws.
Most importantly, when the market is free, and people rely less on government to restrict their liberty to fail, personal judgment increases (through going through the school of “hard knocks”) and people become better at seeing competency. When people find themselves in situations where they do not feel competent, experience will eventually induce them to hire an outside expert to check it out, to use good contracts to ensure quality, and to assess liability if errors should occur. Granted there will always be those in society who will fail to exercise caution, fail to hire experts, and fail to get self taught about a subject where they can’t afford an expert. But there is little excuse for this slothfulness. Let them pay the consequences, I say. Fortunately, there are still enough examples of the proper use of freedom to prove my point. It is imperative that we learn to distinguish between a good idea (safety) and the evil of letting government enforce it by penalty of law.
Remember also, that the ultimate force behind every law is the taking of life and property. One should ask himself, before supporting any law, is the violation of this law worth taking away a man’s life or property should he object to it? In most safety laws, we must come to a negative conclusion. As law moves into mandating landscaping and beautification, the answer is even more emphatically negative–but those laws are on the books in certain cities today because well meaning people failed to see the danger in allowing government to mandate that which they deem beneficial.
Probably the biggest single motivator towards intrusion into this area, despite sound arguments is when little children are adversely affected by the bad judgment of their parents. This is indeed tragic. But it really isn’t any different when an adult gets killed by some unwise decision of another. Both are tragic, but neither can be stopped by “a priori” regulation. Even if you could demonstrate that less house fires are caused by building codes–you could never show that on balance the net cost to society is less. When you total all the additional costs involved with compliance with building codes, (increased housing and rental prices, material costs, compliance costs, litigation, liability trials, bureaucracies, designer’s and builder’s time and cost keeping up with the code, etc., etc.,) the costs far, far exceeds the outright loses from fire or safety that would have occurred in the absence of codes. These are the hidden costs to society. And for all these billions in hidden costs, there are thousands of jobs that aren’t created and small businesses on the margin that don’t make it because money is siphoned off into safety areas. These hidden victims are never counted by the “safety” cheerleaders.
Safety does have a net benefit when implemented carefully and voluntarily within the restraints of good business practice, but those net benefits quickly disappear when mandated nationwide, or statewide by broad brushed bureaucracy and enforcement divisions–as the number of horror stories from small business can attest since the establishment of the Federal Occupational, Safety and Heath Administration (OSHA)(This sure is relevant in today’s times).
The right to take PERSONAL RISKS without prior restraint as long as others, not bound in a voluntary contractual relationship, with knowledge of those risks, are not involved
Simply put, this principle restrains lawmakers from PROHIBITING dangerous risk taking, including financial risks, when each person involved has a knowledge of the potential harm and has voluntarily accepted those risks. This effectively would prohibit such government agencies like OSHA from interfering with employees who voluntarily chose to work under hazardous circumstances. The allowances of this principle would induce workers to be more careful in the contracts they signed, and to exercise due caution themselves. It would also put government financial regulators like the SEC out of the interference business, except to investigate fraudulent practices upon actual evidence or complaint.
Again, as in all areas of freedom, there are those people who may choose to not exercise due caution or properly scrutinize investment or employment conditions where risk is involved. We must not let such failure to make good choices lead us to take away all men’s right to take risks, and turn over such judgments to government bureaucrats. Employers who failed to openly warn workers of certain hazards when they were known by the employer and where the employee had requested to know all hazards subsequent to the contract, could and should be prosecuted for fraudulent practices.
Note that these rights of self-responsibility make reference to being free to take risks as long as OTHERS OUTSIDE OF COVENANT AND CONTRACTUAL RELATIONSHIPS are not involved. This simply means that one’s risk taking (which infers some danger) cannot involve non-contracting parties. Parties who are joint partners with the risk taker, by contract, with a knowledge of those risks, cannot claim to be involuntarily harmed by the effects of the risk taking.
But what about children and family members? These are the COVENANT relationships referred to, since the act of having children engenders an automatic covenant for child care until the child reaches an ability or desire to be self-sufficient. Almost every major decision that parents make involves not only risk to themselves but to their children. Simply getting in a car and driving somewhere is an example. But the mere presence of risk is not sufficient reason to give the state the power to easily intervene in the decisions of parents relating to their children–all of which involve some risk. The risk taking by the parent must be imminently threatening to the life of the child, or represent grossly negligent conduct, that clearly presents a physical risk (starving a child qualifies, but failure to use an “approved” government feeding formula would not) for external intervention by government to be justified. It must also be pernicious in nature, that is, a reoccurring problem, with bad intent, more than a mere one-time case of poor judgment.
For example, driving on public streets and highways cannot qualify as imminently threatening to a child. It is POTENTIALLY life threatening, like most things in life, but not IMMINENT since there is such a low percentage of accidents per miles driven. Even if it did become imminently threatening, it would not be appropriate for government to enter with piecemeal regulations like child restraint laws. Such “least restrictive” doctrines only invite constant government intervention until parents find themselves without ultimate authority for child care. It is better in the long term to provide for government custody intervention only at the most pervasive and abusive end of the scale in order to make the line of demarcation between parental and government authority as clear as possible. The potential of total loss of custody plus other heavy penalties will generally serve as a strong deterrent to gross negligence.
For example, if a parent had a habit of taking a non-consenting, young child with him on a dangerous stunt car circuit, where there were numerous fatal accidents, that could be judged as imminently threatening, it may be appropriate for government to intervene and at least threaten to transfer the custody of the child to another more responsible person if such life-threatening conduct does not cease. If, however, the child was older and more knowledgeable of the risks and desirous of taking them, the state could not intervene, no matter how dangerous.
To engage in voluntary CONTRACTS, written or verbal, without restriction or regulation except where direct and harmful non-contractual consequences to others occur; and to enforce such contracts, where real consideration in the form of labor, assets or other property is given.
The right of contract is one of the most important of our fundamental rights. It does have certain conditions by which it is properly exercised. The right to contract is an extension of our fundamental right to act, as long as both parties are acting voluntarily, and where fraud or deception is not present. Contract rights are also linked to ownership rights, since one cannot contract with that which he does not own or control.
I prefer a very free approach to the rights of contract, with strict penalties and restitution for breaking contracts, despite the fact that many people will, through ignorance and lack of caution, enter into contracts that will cause them regret and suffering.
The question arises as to when a contract is valid. The above language, stipulating the conditions surrounding contract rights, indicates that a contract is binding only when “consideration” is given (meaning something of value), whether in the form of labor, or assets, from both parties.
In other words, a promise to give someone a gift is not a binding contract, because the intended receiver has not exchanged anything in value, for which he could claim damages, should the giver change his mind. When a person promises to marry someone, and that person spends money on preparations for the marriage, many states consider this a valid contract. I do not, unless written–and if it has to be written, it’s a bad marriage to start with. In dealing with marriage, both parties should realize that nothing is settled until it is really settled. Making marriage preparations should always be done modestly and at each party’s own risk. I would not support forcing any couple to marry if one did not want to, but certainly it would be appropriate to require financial responsibility if a child was engendered by the couple.
The presence of fraudulent or deceptive statements would certainly tend to negate the validity of a contract. The only major question that arises is whether the presence of a very minor deceptive statement should invalidate the entire contract–especially if it would result in greater harm and damage to either one of the parties. One would not want to entice people to search for a tiny exaggeration of a claim and turn it into a “fraudulent” contract. While lack of honesty should generally be a good reason to back out of an agreement, damages or settlements should be awarded according to the principles of fairness, each being restored as much as possible to his original position.
Generally I favor a fairly harsh approach to contract enforcement which puts the maximum burden upon the one signing the contract to ask the proper questions and read and understand the entire document. Although it is the contracting party’s responsibility to ask pertinent questions, it is the primary obligation of the more experienced party offering the service to explain all of the risks and complexities involved. These complexities should be part of enforceable contracts. Any withholding of major factors that would have affected the judgment of either party involved could be grounds for abrogation of the contract. But it should be a significant factor, which, of course, would be a matter of judgment that a judge would have to decide. I grant that this is difficult territory. Once we allow a judge to decide what each party should have told the others, it becomes difficult to enforce a contract. No one can possibly remember everything about every detail that may be someday involved in a contract, but certainly the most critical issues can be determined by a specialized judge, using experience judicial criteria.
The greater danger is in the contract that is made ignorantly by people of low intelligence without wisely inquiring into all the pertinent details. Everyone has the right to take the document to a more experienced person for clarification and review. But as a practical matter, this costs money and the poor, the aged and infirm or the ignorant of low intelligence, would either be ignorant of where to find help or would be unable to afford it. I think there is a very real possibility of charitable legal services emerging to help the poor with free advise. But in any case, we need to address what to do with those who intentionally prey upon ignorance and get older people, for example, to sign away their homes for insurance annuity contracts of little value, etc. I would only favor the invalidation of contracts where it could be determined that a clear imbalance between mutual benefits was engaged without having that disadvantage clearly explained in writing and initial. Much as doctors can be required to explain to patients the risks, so the risks of contracts ought to be part of a binding contract. I also think a 3-day cooling off period is productive. With many people, who sign something on the spur of the moment, conscience successfully begins to get through to them those nervous feelings about impending error, only as they think about it later. A 3-day abeyance of contract validity goes a long way to help people back out of bad deals. As long as all parties are aware of such delays in validity, business can properly plan ahead. In all cases of contract set-asides, however, I would favor having the side backing out have to pay for any actual bone fide use they derived from such a contract before abrogation. Expenses of the pusher of the contract should not be allowed, however, unless the abrogating party made the first approach without being invited to do so by the other.
The foregoing has been only a cursory view of a multi-faceted and complex area of law. My intent is to accentuate the basic principles of human action which avoid litigation and place the maximum incentive on the individual to improve judgment. As in the area of risk, the more responsibility placed upon the enforcement of contracts, generally, the more careful people will become. A heavy reliance upon government to protect people from their own ignorance, will only result in greater incompetency and dependency, not less.
However, where a particular promoter shows a history of high pressure tactics designed to induce ignorant persons to sign contracts without a full understanding of the results, a court should have some discretion to designate such tactics as “intent to deceive” and prosecute accordingly. The legal criteria for such judgments would be difficult to determine, but should be carefully designed to deter savvy lawyers from devising ways to break contractual agreements for cursory, or dishonest reasons.
CONTRACTUAL RIGHTS, continued:
1. To engage in any ECONOMIC ACTIVITY desired as long as such activity does not involve compulsion upon others or the assistance of an enemy of these fundamental rights.
a. To unrestricted SELECTION and PURCHASE of all available goods and services desired, whether deemed good or bad by others, whether domestic or imported, except where such purchase, possession or use will infringe upon the rights of others, or assist an enemy of these rights.
b. To circulate and negotiate any tangible asset or sworn evidence thereof as money or a MEDIUM OF EXCHANGE as long as it is voluntarily accepted by another and fraud and misrepresentation are not present.
The foregoing language asserts the basic economic freedom which has been so totally emasculated by the US Supreme Court. This language allows natural monopolies (meaning one company that dominates the market because it is so efficient and unanimously popular), and cut-rate competition, as long as all actions are voluntary. The only “unfair advantage” in the market place is the advantage government grants to some and not to others. This is the only type of monopoly that would be prohibited.
This is not to say that a contractual government, like any other association, cannot set up some type of business, school or service, like the postal service. But it must not use general tax funds to do so, and it must act as a free enterprise, charging user fees, and allow all others to compete freely.
However, the right of people to protect themselves against an enemy supersedes this economic right. No one has the “right” to aid and trade with an enemy. This must be construed very specifically, however. The enemies are often the LEADERS of a nation, not the individual people. Unless government could demonstrate that the transaction will assist specific enemies, a merchant should be free to trade with specific individuals, just as he would be free to assist them in their cause of gaining freedom.
This same principle applies to the purchase of goods. As long as the results of certain purchases cannot be shown to be supporting an enemy of freedom, one would be free to buy such products. The burden of proof should be upon the government. There is a gray area here in determining at what level of mixed free-enterprise and socialism does a government become enough of an enemy to warrant prohibition of trade in the name of self-defense. That would be another judgment call to be made by one’s elected leaders and the courts.
Also, just as there is firm support in the principles for prohibiting the importation of goods made with slave labor, there is some justification for prohibiting the distribution of foreign goods made with government subsidies. Subsidization represents a partial enslavement of a people living under a socialist regime. They are being partially coerced into producing something against their will, by having a portion of their tax funds involuntarily transferred to an industry or to wages.
In both cases, however, the national government could not prohibit such trade unless the totalitarian actions of the foreign government against their own citizens were a real threat to our own freedoms. In the case of Soviet slave labor, this is not difficult to establish, on two counts: first, they have openly stated their intent to enslave us, and the partial enslavement of their own population is in furtherance of that goal. Second, there are or have been at least 5000 Americans in Soviet slave camps.
In the case of subsidized goods, it would be hard to make the case that such subsidization is a direct threat to our freedoms. If it could not be determined that such a threat existed, then the boycott of those goods would have to be voluntary, or be made part of the unanimous citizen contract, wherein all agree not to buy subsidized goods.
HONEST MONEY:
The right to negotiate anything as “money” is a simple extension of the right to contract. As long as the other person willingly accepts one’s medium of exchange, and no deception is present, who is the government to say it is not “good” money. This language on free money prohibits any government activity in the control of money except to prosecute for fraudulent practices. Ironically, governments have always been the biggest perpetrators of fraud in issuing paper currency, without backing–the same thing they condemn as “counterfeiting” in the private sector.
People complain about the potential problems of lots of different “funny money” floating around, if everyone had the freedom to issue their own. That view does not match history, nor does it consider the beneficial example of personal checks issued from a variety of banks. The paper issued is only as strong as the buyer views what the paper promises to pay upon redemption. The best and most valuable money becomes the standard of ease in exchangeability. That is why people select credit cards that have near universal acceptance. We note that no one company has a monopoly, but all of the top contenders meet a relatively high and uniform standard of service and acceptability in the marketplace.
The existence in the markets of millions of personal checks is strong evidence that non-government money works, even with the potential of fraud and insufficient funds. The presence of high penalties for issuing a bogus check is sufficient to deter most. Where “big risks” are present, smart businessmen require more SECURE forms of money than personal checks. Such a hierarchy of surety money would quickly form in a free money society. As in most free market problems, the advantages far outweigh the disadvantages, and experience in the market place usually keeps most people out of trouble. Also characteristic of everything in the free market, ignorance is penalized and skill and trust are rewarded.
In the final analysis, there are absolutely no arguments that one can give for government monopoly of currency that cannot better be handled by the free market, as long as government does a proper job of prosecuting for fraud. All the current proposals about taking the printing power of money away from the Federal Reserve and giving it to Congress are woefully flawed. The nation’s politicians are certainly the last that we can expect to be fiscally responsible. We need only look to the spiraling national debt and the indiscriminate spending by government for evidence. This is not to say I favor a continued role of the Federal Reserve.
Neither are the arguments valid that the supply of money must be increased each year to match the growth of the economy (as indicated by the Gross National Product (GNP) or other indicator). That’s more bad economic theory that most conservatives have ignorantly accepted. Actually, one could freeze the existing supply of money, and prices would simply begin to fall as the GNP increased. The economy can be operated on nearly any quantity of money, as long as prices are free to change relative to the demand for that money, and if sufficient numerical subdenominations of the unit of currency exists to accommodate a high value for scarce money.
By freezing the present supply of paper currency (replacing only worn out bills), its value would gradually increase, except where it had to compete with “real money” like gold, silver or some other valuable commodity. These latter types of money have both intrinsic value AND certification value (meaning the money implies or certifies that the holder had previously exchanged something of value in order to possess it). Paper money only has certification value, which is only as good as people’s confidence in its relatively fixed supply. As people see excess dollars entering the market place (by way of rising prices), they begin dumping dollars (rapid buying) in order to beat the next price rise, or natural devaluation of the dollar. Gold is much more resistant to such devaluation because of its relative scarcity and intrinsic value.
FREEDOM OF ASSOCIATION:
The RIGHT To ASSOCIATE with other persons without coercion as long as that association is desired by all parties, does not constitute a direct and harmful threat to another’s rights, and where such association is not in violation of the desires of the property owner.
Here, the right to associate with other people of mutual choice is stated, with one important limitation: such association must not be a direct threat to the rights of others. Thus, groups associating together for treasonous purposes could be enjoined from doing so. The actual prosecution would have to be on the treason charge, rather than on the association itself, which could not be a crime. But, if there is substantial evidence of treason, further association could be enjoined during the process for determination of guilt. This would prevent military or even mob groups from using freedom of association to mask their intent to gather and strike.
The following are some limiting conditions about the nature of associations. Like other rights in this section, they are corollary rights to property rights. Even on contractual property, you only have the rights you were allowed under the voluntary conditions agreed upon.
Associations possess all the fundamental rights of individuals, but never exceed individual fundamental rights by virtue of being an organization.
This concept keeps government (a citizen association) from assuming it has more rights than individual citizens by virtue of its association power. Even the defense function of government is possessed simultaneously by each citizen. The notion that the state has been given a “monopoly” on the use of power is not true. It is given the first priority in the use of power to defend universal rights, but the citizen never should relinquish his ultimate right of personal self defense, nor the right to join in general self-defense against tyranny. In the citizen contract, each citizen agrees not to exercise his defense rights except in an emergency when recourse to government defense is not immediately available, or when the government ceases to be the servant of rights and becomes a tyrannical extension of majoritarian rule. The governmental association may possess more POWER than an individual, by greater numbers and resources, but that must not be confused with greater RIGHTS. The government is always the employee, not the master, except over those who violate other’s rights.
Individuals may PEACEFULLY ASSEMBLE in groups without criminal or treasonous intent as long as private property rights and free movement on public (association) property are not infringed or impeded.
This doctrine essentially solves the problems of public demonstrations which, in a busy metropolis, can disrupt all other activities. Obviously, people are free to assemble on private property with the permission of the owner. But properly understood, public property is nothing more than a large neighborhood association that owns a park, for example. People using the park, members of the association, are limited by what the rules and regulations set by the elected ruling body. In like manner, government has the right to regulate conduct on public property, by virtue of its charter to establish rules and regulations of conduct.
In other words, no one has full set and use of all fundamental rights except on his own property. When he moves, voluntarily, on to another’s property (even the association’s) he moves into a tacit agreement to abide by some else’s rules or covenant restrictions. Obviously, men would be foolish to give total and arbitrary powers to government in establishing rules of conduct, but that is, in fact, what often happens out of a mistaken trust in democratic processes–the failure to envision the potential corruption of the majority, and the subsequent misuses of majority rule to deny fundamental rights of the productive class.
Unless careful restrictions are placed on citizen-government contracts, all basic rights in a democracy can be limited by the elected officials on public property, including speech, assembly and economic activity. The only limiting factor in democratic law is the majority will.
In a normal, non governmental association, persons who cannot or do not desire to abide by the association rules are free to go elsewhere–and take their money with them. This would be a novel approach to local governments–if people had the power to form competing government entities for basic services, and pay their tax moneys to the one that performed the best. This allows for maximum justice and plurality of belief and action–the ultimate power to escape the oppression of the majority and retreat to a smaller, separate unit of government for greater protection or less personal restrictions. Naturally if competing local governments were permitted, over time the best two or three would prevail. One alone might prevail if it was good enough as compared to the competition. Certainly it may not be practicable for the entire range of services, but it does provide the possibility for the productive class to pull out of local taxing authority that is becoming more and more engaged in improper welfare services. Competing local governments would eventually end up as user fee associations–and the ones who promised the most improper benefits would go bankrupt the soonest.
It is interesting to note in this regard that regulations and restrictions increase exponentially with the density of population in any given place. The more people, the greater the friction and interaction that appears to require government regulation. Also, voluntary cooperation decreases in proportion to lack of personal acquaintance people have with others, which is very low in large cities. For this reason, the creation of smaller, more personal government entities is beneficial and more responsive to the individual. The incentives to form unified smaller divisions of government, as provided herein, tend to keep cities from becoming excessively large. Voluntarism is increased due to a higher level of personal acquaintance among the community and a higher level of uniformity in values. Both of these factors, working together, tend to decrease the propensity to demand socialist forms of intervention and regulation in the community. Large units of government do just the opposite. They foment a sense of futility about individual effort and induce citizen dependency upon the “all powerful” state. Worse yet, individual action tends to give way to class consciousness as minority groups clamor for control.
The only real down side to smaller units occurs when overall military defense is needed. Small factions tend to be very difficult to unite until the crisis is so large and the threat so great that it is often too late.
To DISASSOCIATE with other persons without public reason or justification and to exclude all persons not desired from one’s own property.
This is the basic right to exclude people, for whatever reason one desires, but is limited to property controlled by you. This concept runs at variance with present-day civil rights legislation, which prohibits private discrimination. Private discrimination should always be legal. To do otherwise is to say that government has the arbitrary power to decide who you will associate with or who you will do business with. There is no substance to the government argument that a business “open to the public” is a public business. Making an offering to the public to buy does not presuppose the loss of right to select with whom one will do business–nor does it establish any legal linkage to regulation and control. Regulation and control can only come at the threat to a fundamental right. Since no individual has a right to force any one to engage in business with him, there is no damage to fundamental rights when someone declines to sell or offer you their services.
The invitation to the public is not a license to buy, but an invitation to negotiate, and can be withdrawn or declined by either party at will. The businessman, right or wrong, must have the power to limit the invitation in any way he wants–even to race, color, creed, size, weight, or anything at all. While I would not agree that there was such a need to be so bias in most cases, I would defend his right to do so. Clearly there are cases when gender, weight, or size can be significant factors that an employer has to have the right to consider. While race is almost never a valid criteria for private discrimination, once you allow government to start making a prohibited list of discriminatory actions, what color or law allows you to limit that process. There is no limit once you allow government to enter this area–so we must never allow it to enter and prohibit discrimination.
Remember, to limit a person’s ability to discriminate (to make a class judgment) is to violate one’s right to act on his judgments, when such judgments do not violate the rights of others. Remember, there is no right to buy, only the right to accept an offer if tendered. There is no right to not be judged, only to judge others and to act on those judgment, within one’s fundamental rights. A person’s class judgment, and subsequent desire not to deal with that class, is not violating anyone’s right–it is merely the restricted exercise of his own right. The power to invite or not to invite is inherent in the right to control entrance to one’s property.
Congressional civil rights legislation of the current type is only appropriate for matters of federal contract. Any association may choose to limit their right to discriminate, but they cannot limit others by majority rule–only by unanimous voluntary covenant. In like manner, state legislatures could prohibit discrimination in state contracts, but neither legislative body can rightfully prohibit private discrimination, since that is a violation of the private citizen’s fundamental right of association, and disassociation.
FREEDOM OF SPEECH
To PUBLISH, or make any other written or VERBAL EXPRESSION, on property within one’s ownership or control, whether for personal or commercial intent, without prior restraint or restriction of the distribution thereof, except when acting so as to destroy or deny to others these fundamental rights. All persons have the right to state anything labeled as their own opinion or personal belief as long as such statements are directly accompanied by such qualifying remarks.
The foregoing statement is the basis for free expression, both written and verbal. Again, the basic condition of one’s realm of ownership and control applies. One does not have the right to say or publish anything on someone else’s property–this must be done by mutual agreement and contract. Thus no one has “free speech” rights in another’s house, or on his property, or in another’s business.
Even on “public property” (of a true, contractual government association), one would be subject to the rules that had been pre-agreed upon in the by-laws of the governing unit–which may or may not have some limits on free speech. These regulations may be either open or restrictive, but in any event, they would usually be dependent upon some type of majoritarian control. If competing local governments were allowed, and one didn’t like the rules of the association, he would be free to try to change the majority opinion, or withdraw from the association and not participate in the benefits of public property, nor pay any of the taxes. That is not, however, as simple a choice as it sounds, as will be discussed in a later section–notably because there are issues of territoriality involved in government. But in any case, under this doctrine, one can always retreat to the private arena to criticize government if there are excessive limits in the public arena.
LIBEL AND SLANDER:
When we come to the sticky area of libel (written defamation) and slander (oral defamation), I am in favor of allowing the maximum possible freedom to state negative opinions about others–especially since such criticism is essential for the preservation of freedom and justice. But I would be reluctant to allow continued lying about provable facts, with bad intent. I do not favor the establishment of a tenuous difference between public servants and private people, as in present law, trying to establish different rights for different groups. But I am cognizant of the need to allow a person to prosecute others for lying about matters of purported FACT which the purveyor knows are malicious and untrue, which cause demonstrable harm –however difficult that may be to prove.
I believe that the resolution lies in the difference between matters of fact and opinion. No one has a right to have a fixed value on his true worth–that is a matter of opinion, and each is free to judge another’s worth as he sees it. No one has a “right” to be viewed by all as “honest, upright, moral, or good.” Those are all matters of general opinion by others as they view another person and are subject to change. Each person should have the right to make general–non fact-based statements as his own opinion, as long as his comments are stated as such. This disclaimer sufficiently weakens any statement and leaves room for enough doubt to encourage others to reserve judgment.
Nevertheless, there are matters of fact surrounding a person’s property, which include himself, which are inseparable from the rightful use and exercise of self and property. There is no conflict of rights in recognizing the ownership of facts since all men can own truthful facts simultaneously without being in conflict with one another. By definition, a truthful fact is one which does not conflict with any other fact about the same subject.
The key problem in libel and slander is in matters of opinion where there is no DIRECT, physical attack on the victim, except perhaps in the mind and intents of the perpetrator–which is hard to prove. The effect of the negative comment is upon how OTHERS may view your reputation. There is a difference between something being harmful to your reputation, and being harmful to your rights. No right to a certain reputation exists–only to provable facts of history surrounding your person or property. So the only damages that should be allowed to be recoverable are those which cause financial loss or loss of employment loss based upon the promotion of falsehoods done with malicious and willful intent.
No one can prove he should be esteemed by others in a certain manner. This must be determined by individual negotiation. It cannot be a right since it would be in direct conflict with another’s right to make a free judgment about your true worth as he perceives it. Furthermore, would you dare give government the power to regulate or determine how others view you? Or worse yet, demand, as do the egalitarian socialists, that all people are forced to accept all others at equal worth–and therefore, equal pay. That is unjust as well.
In general, my purpose in seeking a means of attacking libel and slander (without endangering free speech) is because these often constitute acts generated by real malicious intent to destroy a person’s reputation or economic livelihood. Even true economic competition can exist without malicious intent, and I think it can be distinguished from predatory practices. So, if we can distinguish malicious intent without destroying all beneficial criticism, or beneficial natural monopolies, then we will have a more peaceful society. Allowing malicious intent to grow under the protection of freedom is only tolerable in very minor amounts–especially since bad judgment and actions always increase the demand for “another law” to protect someone, which often in the end restricts everyone’s freedom. So, I believe there is a significant purpose in seeking ways to target malicious intent while still preserving all essential freedoms.
One possible way of attacking the problem of libelous speech is to differentiate between words that can never be accusations of fact (hence are always opinions) and those that always imply factual knowledge. For example, calling someone a rogue, a bum, ugly, amoral, stupid, or unscrupulous would never be grounds for liable. These words are all derogatory, but all unspecific. There is no way to know precisely what the grounds are for such appellations. However, descriptions such as immoral, liar, thief, and traitor, are words that underlie specific actions or facts that can be discerned by law. One can challenge each of these with a question seeking a specific fact: with whom and when did the immoral act occur?….what was the lie?….what was stolen and when? etc. These accusations are traceable and should be open to scrutiny. General accusation with no traceable basis in a specific fact should be open for use, without fear of having to back them up. It is true that one can ask a person using unspecific, derogatory words to give us some back up, but he should not be required by law to do so since the answers could be valid, but still composed of general observations, none of which could be traced to any specific illegal or morally reprehensible act.
But how can we distinguish between one type of negative attack that is malicious and untrue, and another which is even more devastating but true? Let us take the economic case first. We cannot say that a reporter’s negative (but true) criticism of someone’s product is harming the producer. Each has an equal right to true facts. If it is true, the actions of the producer, which were sloppy or deficient, are causing harm to himself. The reporter in drawing attention to the facts does not create the harm. But if the statement is false, and stated as a fact, then damages could be awarded if malicious intent is proven. In the absence of malicious intent, but where one can prove the allegation is false, the perpetrator should be required by law to make a correction of equal publicity. The refusal to correct a proven falsehood would be a strong indication of malicious intent.
How about the case where a reporter incorrectly, but without malicious intent, maligns a product with a negative opinion, rather than fact, and destroys sales? While no one’s fundamental rights have been damaged, financial damage has occurred in loss of returns on investment capital. Should the plaintiff be able to recover damages? Probably not, as long as the report was concerning opinions and not facts. Unless one can show that untrue facts were presented, with malicious intent, not just ignorance, we must rely here upon each person’s right to campaign for his own position.
One of the ways to show bad intent is for the offended party to send by certified delivery facts, evidence and arguments refuting the charges. If the perpetrator continues to publish the same falsehood, without specifically countering each and all of the arguments and evidence sent to him, he would be held liable for damages henceforth, if a court of law found those facts provable. Obviously one would not have to respond to fallacious arguments or evidence which would not stand up in court. These procedures would not. in my opinion, have a chilling effect on argumentation–in fact, it would enhance it–since the perpetrator could not be “selective” in only choosing the arguments he could easily challenge. If he left out some (of those sent to him by certified delivery), that could be proven to be valid in court, it would demonstrate bad intent, in the face of provable facts, and damages could be awarded. This would effectively eliminate one of the most common of all ways in which people obscure truth in public debate–they simply avoid answering the critical issues and avoid mentioning critical evidence that would deny or at least shed unfavorable light on their position. The establishment media uses this all the time, and would become liable for these knowing obscurations of truth once they had been served notice. Under this new color of law, there would still be almost unlimited freedom to speak one’s mind–especially the first time. But once served with notice of provable error, he or she would be required to set things right, argue the issues, or disregard them if they were sure they were without substance.
Of course, there would be greater protection in stating anything as your own opinion, and the more general the opinion, the better the level of protection. But, my present inclination lends me to favor even employing the “Certified delivery of evidence” rule to specific attacks by opinion. Making an accusing party (even under the guise of opinion) responsible to air the counter evidence (with his rebuttals) if he deems it provable in court is good for debate and places the burden of balanced argument (not ultimate proofs–which belongs to the court) on the accuser.
On the other hand there are the types of attacks, usually on reputation, that cannot be disproven by certifiable facts. For example, one could not send any certifiable proof to counter certain types of charges like “Mr. so and so has been unfaithful to his wife.” But in such cases, the accused could demand that the accuser provide the basis of his evidence, or cease and desist. I would not favor prosecution for the first statement–only the subsequent attacks where the attacker could not produce evidence. I would be fairly lenient on evidence as well in this regard. If one could name the source of the information, he should be free to quote that source without having to prove its veracity. The accuser would then have to go after the source. For matters of moral turpitude, I would favor the source being free to stand upon anything he claims he was an eye witness to, without having to prove it. However, if at that point, the accused can prove that the claimed eye witness was not present, he could claim damages from him for defamation of character. The basis in rights, is not that anyone has a right to be esteemed in any certain light, but that he has a right to defend an truth about himself, when that truth is specifically attacked by another for malicious intent. Malicious intent mean the will to do harm–even if it is not physical, and therefore damages of a fairly limited amount (but enough to be a deterrent) should be allowed.
Books are a little different than television, or even newspapers since it takes a lot more time and money to get something in print. The burden of having to make corrections or retractions would be a costly one. If, therefore, it became law that publishers would be responsible for attacks of fact against another, habits would naturally evolve to avoid unnecessary correction expense. Accusers of people or products would probably have to send their manuscripts for comments to the accused parties in order to avoid having to publish a later clarifying work. As long as the accusing party addresses all issues presented to him by the accused, and avoids attacking provable truth, he should be free to proceed without fear of damages. My initial feelings are that this system or something similar offers the best balance between being about to present some forms of hearsay evidence, which one believes to be true without having to prove it in court at the same degree of evidence that apply to criminal law.
It is sad to be unable to remedy every area of damage because the injustice cannot be proven to exist, when bad intent is not visible. The interesting alternative that I present in this new proposal is that one doesn’t concentrate on proving the past malice, but one provides new certified evidence upon which future malice can be proven if the accuser proceeds to attack in light of provable facts or evidence. The present alternatives seems to be a worse–allowing unlimited attacks on everyone regardless of provable truth, or the making of every speaker or publisher liable for every statement he makes, with the burden of proof on the accuser. The latter would have an extreme chilling effect on free speech. This would not only place a severe restriction on one’s ability to speak (since few things we ever say are fully provable), but it would also destroy our ability to criticize tyranny or malicious conspiracy in government.
For example, suppose you know something about a government official that is improper and dishonest. You saw it with your own eyes and are sure of what you saw. However, there were no other corroborating witnesses, so it is your word against his–you cannot prove your charge under a court’s rules of evidence, other than to serve as your own witness. Under the criteria of having to prove one’s statement as true, or be subject to someone’s libel or slander charge, one would be unable to warn others without suffering unjust damage from the other’s libel suit. But being free to stand on one’s own testimony without being forced to prove it allows for an open attack against evil. The opposition could only stop you from saying subsequent statements if they were capable of proving you were not present and had no other evidence. Even then, the maximum penalty would be a cease and desist order.
So, under these principles, there is a simple solution. The man possesses a fact, by right, since he saw it himself. As long as a person can claim to be an eye witness, he must be free to declare those facts, and no one can charge libel or slander, unless they can prove he is lying. An eye witness has a right to the facts–they are part of him. He can only be prosecuted if the other party can prove he is lying, not simply mistaken. This alternative allows for the maximum freedom to criticize known facts, without placing the burden of proof on the speaker–which would be an intolerable burden to free speech since so few things in life are provable even when seen by an eye witness.
I would also apply the same standards of free speech to leaders in government. They would not be able to attack individuals or legislation without having to respond to arguments and evidences of truth presented by the opposition.
FREEDOM OF THE PRESS
As to the freedom of the press, I think it is sufficient to look at published material as a free and voluntary contract between publisher and subscriber. Today, we erroneously think of the newspaper as a public medium. It is not, as long as every paper is sold on a private contractual basis–without use of tax funds. All aspects of the news media, as well as private television should be considered private communication, despite the fact that it may be available for sale in open areas. The only thing that would be subject to prosecution would be a violation of the fundamental right NOT TO BE INVOLUNTARILY ACTED UPON IN A HARMFUL MANNER. This would entire an attack upon character (after demand for evidence or the sending of certified evidence to the contrary) or visible material on the cover or screen, open to public view that would be morally offensive and harmful to children. In other words, one could only petition for a cease and desist order and damages if you could view objectionable material from a public sidewalk or from your own private property. You could not claim harm or damages, however, if you chose to go inside a private bookstore or viewing area, since you entered the domain of someone else’s rights. Where there is an open invitation to enter a business, some appropriate warning of the presence of offensive materials could be required.
FREEDOM OF BELIEF
Any person is free to believe anything he wants, good or evil, without restriction. In fact, there is no way, known to man, of knowing what a person believes unless he expresses such beliefs. Generally, limitations may be placed upon the exercise of belief, only when actions, based upon such beliefs, violate the rights of others. That is fairly straightforward. But what about the expression of beliefs that are viewed as an INTENT to violate others rights?
I believe that it is within the defense rights of all persons to apply prior restraints to those who intend to harm others, or in other ways violate their rights. The problem arises in finding clear and distinct evidence that such intent is real, imminent, and potentially dangerous to rights–not simply because you dislike or disagree with it.
Those are not easy criteria to satisfy. Generally, one would have to rely upon witnesses, which presents difficulties about who is telling the truth. But neither is it sufficient to wait until the person strikes and does his damage. Prosecution is of little consolation to one that has lost his life or been permanently damaged. Restitution is insufficient in areas where no restoration is possible. Concerned for justice, as we may be, this is one of the gray areas of law, which unfortunately cannot be satisfactorily written in statute. In general, the issues of intent to do damage must be left to the judgment of a jury. Juries can usually sense when a witness is lying, and must be given sufficient freedom to declare such. But there is a troubling trend in jury selection now–the picking and choosing of dumb, emotional, manipulable people and screening out all of those capable of critical analysis. I’m not sure if such juries are reliable anymore.
I am not so concerned about the potential for leniency in these few gray areas of the law, as long as strong measures are present to deter the actual acts, if they should be proven to have occurred. It is when we show excessive leniency toward the determination of criminal intent, combined with permissive prosecution of the crime, and liberal parole policies, as we now have, that evil criminal conduct fails to be deterred.
THE RIGHT TO PRIVACY
To act in PRIVACY, within one’s own or contractual property, free from search, seizure, regulation and internal surveillance except when acting to infringe upon, or destroy another’s rights.
In this section, the right of privacy is assured, with two conditions. One, that the right only exists on one’s own property, or on property that he controls. However, it is incumbent upon the person to provide his own shielding when he is in plain view of others who may be on some else’s property. Second, no one has a right to privacy when acting and planning to infringe upon another’s rights.
The issue of secret surveillance has an interesting result under these principles. The implication of these principles is that the actions and the thought processes OF THE PERSON CLAIMING PRIVACY determine whether he possesses the right or not. If he is in the process of planning or acting in a treasonous manner (defined as working to destroy others’ fundamental rights) he, at that moment, or in any subsequent actions related to that intent, HAS NO RIGHTS TO PRIVACY.
In other words, if a government agent is eavesdropping on him and discovers the intent to violate rights, his eavesdropping is valid. If an agent is discovered by the owner and prosecuted for invasion of privacy and cannot produce any evidence of infringement of rights, then the officer could be held liable for a violation of privacy and property rights. If there were external evidence sufficient to secure a time-limited warrant from a judge to engage in the a search for evidence, the officer could not be rightfully prosecuted since the probability of treason had already been established by some evidence. The judge would be liable for issuing any search warrant with insufficient. Officers of the law should be held personally liable for falsify such evidence to a judge. But none of these cases should be allowed to taint actual evidence of a crime. They should be prosecuted as separate offenses.
Under this doctrine, both accidental discovery of evidence can be used to convict as well as evidence by warrant issued under probably cause.
FREEDOM OF RELIGION
To be free to WORSHIP God according to the dictates of conscience, as long as any actions stemming from such worship do not violate the rights of others or covenants individual members have made with government. It is also the freedom not to be compelled to worship or give allegiance to any deity, object, person or government except by voluntary covenant.
At issue here is the concept of ultimate sovereignty. But sovereignty must always be stated relative to other claims to power. It is my personal belief (which I do not desire to force upon others) that the Creator of this earth possesses the ultimate sovereignty over earthly affairs–regardless of man’s recognition or lack of recognition of God’s existence. Because of my recognition of God as the Creator and ultimate sovereign over the affairs of the earth, I can only give partial, conditional allegiance to any earthly power.
There is a distinct propensity in evil man, especially those bearing high earthly powers, to become enraged at the thought that certain religious persons refuse to recognize the absolute powers claimed by government. Throughout history, they have taken great delight in inflicting pain, suffering, and even death upon innocent persons, trying to coerce them into submission. This declaration is an open warning to such persons that no such involuntary allegiance can be rightfully justified.
But neither are these professions of belief grounds for demanding that all give allegiance to God. I believe that the grand Creator of earth wants men to be free to choose whom they will serve. Thus, men are free to give as much voluntary allegiance to earthly institutions as they wish and, in contrast to the foregoing, religious men cannot rightfully compel others to withhold such allegiance from earthly institutions in deference to God.
Because of the temporary autonomy given to man on earth, and the potential abuse of government power, I believe it is in the best interest of all good men (including peaceable, but non-religious persons) to join together in establishing good government for self-protection. In doing so, we do not necessarily give such government total allegiance. It is perhaps more prudent to look upon our allegiance to country and even good government as conditional–that is, to the degree that government does not infringe upon fundamental rights.
Such a government protecting every person’s right to worship or not to worship, as he or she may see fit, can and must allow for the free expression of religious feelings by its elected leaders–with one limitation. They must not use general tax funds to promulgate religious teachings, symbols or prayers. A leader may pray publicly or privately, but it would be improper to pay a minister to pray at a public gathering. He could do so without pay, as long as the selection for the program followed what the majority decided. Leaders have to be given full powers of free speech in order to lead. But beyond that they cannot use general tax funds to promulgate values. Values must always be competing, and the only way to accomplish that in a free society is to make sure no one has to subsidize anyone else’s values with public funds. That’s why prayer and even “generic” religion is improper in public schools–because the government schools improperly take everyone’s money. Now, if government schools were financed exclusively user fees, then if the majority wanted to pray that would be acceptable. Those that objected would be free to choose schooling elsewhere with no financial penalty.
4:
SELF DEFENSE AND REVOLUTION
To DEFEND one’s person and property against any overt and imminent threat, and to use the minimum, appropriate force required, of the alternatives immediately available at hand, to eliminate such threat, when no immediate recourse is available to assistance or constitutional adjudication. This includes the right to defend oneself against the aggression of other persons acting unconstitutionally as a majority within a government with the intent to take assets without prior consent or otherwise deprive any person of these fundamental freedoms.
There are two inherent dangers involved in the fundamental right to self-defense. First, it must not be viewed as a total license to kill for small and petty reasons. But on the other hand, it must not be so restrictive that it forces a person to calculate a myriad of legal alternatives when he is under dangerous, threatening and uncertain circumstances.
As we discussed earlier, we join together to form governmental associations in order to enhance our capability to deter and prosecute crime, and to use large scale defensive military force when appropriate. We also place voluntary limits upon our own powers of self-defense, by deferring to the judicial process for prosecution rather than taking personal retribution and revenge. The only exception is when the threat is so imminent, dangerous, or uncertain that there is no safe opportunity to summon law enforcement officers. In such a case each person is free to rely on his fundamental right to defend himself.
Such self-defense should give every benefit of the doubt to the one who is being threatened–not the aggressor. This principle is specifically worded to not give the type of legalistic aid and comfort to criminals as is presently provided by the myriad of legal restrictions surrounding the use of “deadly force” by a citizen.
A homeowner who is threatened by physical force should be free to select the best weapon, of that which is immediately available, that HE or SHE determines is necessary to eliminate the threat. There are circumstances that may well even justify shooting a violent attacker as he is fleeing, under the very real presumption that he is likely to come back and try again. It also means that a person isn’t restricted from using fast and deadly force against an attacker simply because he cannot visibly see a weapon. In many circumstances, at dark and at night, the presence of an intruder who refuses to respond to your demands to identify himself or otherwise stop his approach warrants the use of deadly force, from as safe a distance as possible. The only weapon that is usually suitable under such criteria is a stand-off weapon, such as a handgun, which demonstrates one of the prime reasons why a citizen’s right to self-defense is severely handicapped if handguns are prohibited.
The last part of the statement expands the self-defense role from the individual threat to the more onerous threat of tyranny by improper government force, as is quite common even in our society. In essence, it defines the right of legitimate revolution against government tyranny.
Instead of reaching for a gun to go next door and rob people, when in need, people have been enticed to believe it is appropriate to “reach for their legislator” instead of the gun. The legislator, along with a majority of the other representatives, performs the violation or theft, but he does so in the name of the law and taxation. That is why social welfare laws are improper and a violation of the fundamental rights of ownership. Government asserts the power to do what the individual citizen does not have the right to do–take from the productive and give to those that claim a need. But government, like any other association of men, cannot possess greater rights than those forming the association. If individuals do not have the right to take money from another without a voluntary exchange, neither does government.
Government has the power to tax, but only under contractual circumstances where the citizens have agreed to pay for services they assign a government to perform. The power to tax should be nothing more than an extension of the individual power to contract. After receiving a contractual service, the individual can be forced to comply with the terms, meaning “pay up.” Unfortunately, we have many types of government taxes which are forced upon people who have never contracted for the service. This is improper. In fact the entire formation of a government without initial consent of all the governed is a violation of a major principle of liberty.
When sufficient violations of this nature occur, and when there is no further recourse to peaceful change, the people may well be justified in exercising their right to revolution. Usually this is only necessary when the majority of voters have begun to participate in the benefits of government theft, and refuse to repeal the improper laws, voluntarily. Only when an oppressed minority has lost, in whole or in part, its fundamental rights and there no longer remains any ability to gain redress for grievance by democratic means is it justified in disregarding the law (nullification), leaving the government (secession), resisting compliance by armed defense, and throwing the rascals out of power (by revolution).
Granted, this is a dangerous and unpleasant course, and as stated in the Declaration of Independence, should not be done for “light and transient causes.” Nevertheless, it must be universally taught and defended as the fundamental right that it is. (Such instruction of citizen’s rights should never be allowed to justify a mandatory government school system–only that it may be view as a mandatory prerequisite of understanding for each person applying for citizenship. Where and how he learns it is up to the individual, as is discussed in the area of contractual citizenship.”