Constitution – Dean Cook

End Affirmative Action and DEI In Employment

In 1963, President John Kennedy made a televised appearance and urged legislation similar to what would become the Civil Rights Act. After Kennedy was assassinated, President Johnson signed the Civil Rights Act of 1964 into law. (https://www.archives.gov/milestone-documents/civil-rights-act)

The act was the most sweeping legislation on this topic since Reconstruction. It covered many areas, and is broken down into eleven titles. For instance, Title I has to do with voter rights, Title VI concerns federal funding, and Title VII concerns employment. A major intent of the act was to end Southern legal policies concerning public accommodations, voting, and businesses. However, the Civil Rights Act of 1964 went far beyond this, as it did not just abolish certain state laws in the South, but also regulated private action by private businesses and individuals. (https://www.archives.gov/milestone-documents/civil-rights-act)

Opponents of the Civil Rights Act said it would, amongst other things, lead to a system of racial quotas in hiring. They said businesses would have to hire a certain percentage of each race, regardless of the merit or ability of those persons to do the best job. Proponents of the bill that would become the Civil Rights Act assured the nation it would not institute racial quotas for the hiring of employees. (https://www.americanbar.org/groups/crsj/resources/human-rights/archive/1964-civil-rights-act-then-now/) However, subsequent Supreme Court decisions said that “voluntary affirmative action”, that is open discrimination against whites in hiring, was just fine.

Currently, the courts say any private employer is free to implement voluntary affirmative action programs that are claimed to assist blacks and other minorities. This has been the law of the land since 1979, when the US Supreme Court decided United Steelworkers of America v. Weber, 443 U.S. 193 (1979).

United Steelworkers concerned a collective bargaining agreement between a union and an employer, which said that 50% of employees in a training program would be black “…until the percentage of black craft workers in the plant is commensurate with the percentage of blacks in the local labor force.” (Id.) Weber, a white employee, sued, pointing out that the policy violated Title VII of the Civil Rights Act. The plan, instituted by the labor union and the employer, was considered by the court to be voluntary, and not one that was required by government. The Supreme Court held that since it was voluntary, and was aimed at helping blacks, it did not violate Title VII.

The Court pointed to the Legislative History of the Civil Rights Act, which indicated it was aimed at helping black people:

“Congress’ primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with ‘the plight of the Negro in our economy.’ 110 Cong.Rec. 6548 (1964) (remarks of Sen. Humphrey).” (Id.)

In other words, the Supreme Court in United Steelworkers said the Civil Rights Act of 1964 was there to help black people, not to create a “colorblind” society, or to create “racial equality in the workplace”.

The Court in United Steelworkers also dismissed a provision in the Civil Rights Act that seemingly prohibited racial quotas, in an act of what I’d call “linguistic jujitsu”:

“Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.”(42 U.S.C. § 2000e-2(j))

The court basically focused on the language: “…to require any employer…to grant preferential treatment…on account of any imbalance which may exist with respect to the total number or percentage of persons of any race….in comparison with the total number or percentage of persons of such race…in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.”

The Court said no one was “requiring” the employer in United Steelworkers to grant preferential treatment to blacks, who were underrepresented in the workforce, in comparison to the number of people living in that area. In this case, the business in question was located in Gramercy, Louisiana, whose local workforce was 39% black. Prior to the implementation of this program, the workers in the business in question, involved in that particular type of work, was only about 1.83% black. (Id. at 198)

It’s doubtful that any court, anywhere, ever, would allow an “affirmative action” program to stand, if the situation were reversed. That is, imagine if the population of a city were 39% white, but only 1.83% of a company’s workforce were white, and the company instituted a program to increase white hiring. (I’m not sure if this would ever really happen, but perhaps if some basketball team decided to have a special program to increase white basketball players?) Not only would such a policy be struck down by the courts, the business would likely be burned to the ground by an angry mob of protestors, but I digress.

Probably the above scenario I present, of a black imbalance of workers over whites, also could never occur because the Court in United Steelworkers went on to say that there were limits on when a voluntary affirmative action plan like that one would be upheld. The Court said the plan in that case was designed to “...to break down old patterns of racial segregation and hierarchy…” (Id. at 208), it did “…not unnecessarily trammel the interests of the white employees…” (Id at 208), and the plan was a temporary measure, and would only continue until black employees as a percentage of workers, were the same as the percentage of blacks in the local population.(Id. At 208).

Like it or not, since 1979, employers have been free to “voluntarily” discriminate against whites, in favor of blacks, as long as they could show it had to do with breaking down “old patterns of racial segregation”, did not “unnecessarily trammel the interests of whites”, and so long as the measure was “temporary”. This is what many companies have done, too. For instance, Larry Fink of Blackrock said that he was instituting an aggressive “diversity program” in order to get rid of “…a bunch of white men…”. (https://www.foxbusiness.com/business-leaders/blackrocks-larry-fink-rattles-employees-amid-political-posturing) (Fink and his defenders would, of course, say that I’m mischaracterizing what he said, but he was aiming to reduce the number of white workers by replacing them with less qualified minority workers, since a profit-oriented business would naturally hire the most qualified, regardless of race, in order to maximize shareholder value and profits.)

There are indications in the legal system, and in the culture, that preferential treatment for black employees in hiring could be coming to an end, however. This has already occurred, “de jure” if not “de facto”, when it comes to affirmative action programs in college admissions.

In the Summer of 2023, the US Supreme Court issued its opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. This opinion declared illegal any sort of racial preference system for any entity receiving federal financial assistance. Most universities and colleges today receive such financial assistance through student aid programs like Pell Grants or Federal student loans, as well as through research grants and other tax breaks:

“The clearest example of Title VI-covered federal financial assistance is money provided through federal grants, cooperative agreements, and loans. An entity may receive grant money directly from an agency or indirectly through another entity. In either case, the direct recipient as well as the secondary or subrecipient are considered to have received federal funds. In other instances, the funding may be directed to the funding beneficiaries but another entity ultimately receives the funding. For example, a college or university receives federal financial assistance indirectly where it enrolls United States military veterans for whom the federal government provides tuition payments.” (https://www.justice.gov/crt/fcs/T6manual5)

Title VI of the Civil Rights Act of 1964 says no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (https://www.dol.gov/agencies/oasam/regulatory/statutes/title-vi-civil-rights-act-of-1964)

Additionally, even without the existence of Title VI of the Civil Rights Act, a state government cannot prefer one race over another without likely running afoul of the Fourteenth Amendment’s equal protection clause. The majority opinion of Justice Roberts spent a lot of time analyzing the actions of Harvard and UNC based on the equal protection clause of the 14th, but, as far as I can tell, it was simply assumed that Harvard was a state actor. At footnote 2 to the majority opinion, Justice Roberts says:

“Title VI provides that ‘[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.’ 42 U. S. C. §2000d. ‘We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.’ Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.”(SFFA v. Harvard, 20-1199, decided June 29, 2023, footnote 2, Roberts opinion, emphasis.)

The opinion’s equal protection clause analysis makes more sense with respect to the University of North Carolina, which is clearly a state actor. It would seem to me that Harvard’s program was struck down more because of Title VI, not the equal protection clause, but the Robert’s footnote 2 makes it clear this is based on past precedent, which no one asked the Court to reexamine in that case. (Whether this makes any difference in future analysis of affirmative action programs at private versus state public universities, time will tell.)

The relevant facts in SFFA v. Harvard concerned the admissions processes at Harvard and University of North Carolina, which ensured that race was a major determinant in whether a significant percentage of black and hispanic students were admitted to these universities. Since there is only a certain number of students admitted every year, if black and hispanic students are being admitted because of their race, and not their qualifications, it meant there were other non-black, non-hispanic students not being admitted, who otherwise would have been admitted, based on academic qualifications alone. (In other words, this was a “zero-sum” situation. The only way for one student to “win”, and be admitted, was for another student to “loose” and not be admitted.)

In a six to three decision, the Harvard and UNC admissions programs were found to be illegal by the Supreme Court. As noted, much of Justice Robert’s majority opinion centered around an equal protection analysis under the 14th Amendment, which more clearly applied to UNC. His opinion noted that any exception to the equal protection clause must survive what is called “strict scrutiny”. Under this two-step test, the racial classification must be used to “further a compelling governmental interest”, and second, must be “narrowly tailored” to achieve that interest. In practice, almost nothing will survive strict scrutiny analysis by a court, meaning almost all governmental distinctions based on race are illegal:

“Outside the circumstances of these cases, our precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. See, e.g., Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007); Shaw v. Hunt, 517 U. S. 899, 909–910 (1996); post, at 19–20, 30–31 (opinion of THOMAS, J.). The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot. See Johnson v. California, 543 U. S. 499, 512–513 (2005).3) (SFFA v. Harvard, 20-1199, decided June 29, 2023.)

In a 1978 case, Regents of University of California v. Bakke, the Supreme Court had said that promoting a racially diverse student body could be a “compelling governmental interest”, such that certain affirmative action programs could survive strict scrutiny. As the majority in SFFA v. Harvard noted, this was the opinion of Justice Powell, while the rest of the majority wrote their own opinions about why the program in Bakke was legal:

“In a deeply splintered decision that produced six different opinions—none of which commanded a majority of the Court—we ultimately ruled in part in favor of the school and in part in favor of Bakke. Justice Powell announced the Court’s judgment, and his opinion—though written for himself alone—would eventually come to “serv[e] as the touchstone for constitutional analysis of race-conscious admissions policies.” Grutter, 539 U. S., at 323….No other Member of the Court joined Justice Powell’s opinion. Four Justices instead would have held that the government may use race for the purpose of ‘remedying the effects of past societal discrimination.’ Id., at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). Four other Justices, meanwhile, would have struck down the Davis program as violative of Title VI.” (Id., emphasis added)

In essence, Bakke was a tie, with one judge, Powell, breaking it in favor of the affirmative action side, but for a reason other than “remedying the effects of past societal discrimination”.

The majority opinion in SFFA v. Harvard also discussed another case, Grutter v. Bollinger, from 2003, in which the affirmative action program of the University of Michigan law school was upheld. In that case, the court endorsed Justice Powell’s position from Bakke, that racial diversity was a compelling governmental interest. Interestingly, the court in Grutter, as part of Justice O’Connor’s majority decision said:

“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (Grutter v. Bollinger, 539 U.S. 306, 343 (2003).)

So, the Grutter court punted on the issue, and said they’d uphold such programs for now, but not at some point in the future.

The majority opinion written by Justice Roberts in SFFA v. Harvard used strict scrutiny analysis to find that affirmative action programs for state universities like the one at UNC were illegal:

“For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”(SFFA v. Harvard, 20-1199, decided June 29, 2023.)

The majority opinion did allow for one caveat. It said that:

“...nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” (Id.)

This is why I said that affirmative action was made illegal “de jure” if not “de facto”. Every university, including Harvard and UNC, will now increase black and hispanic enrollment through the use of essays, where the applicant makes a note of the fact that they are black or hispanic, and ties it in to some way they once were allegedly discriminated against and overcame it. (This will probably generate a whole cottage industry of essay-writers and “editors” that will assist black and hispanic students with this task, or they’ll just use Chat GPT to make something up.) The Court did note that this was not a license for backdoor race discrimination:

“…universities may not simply establish through application essays or other means the regime we hold unlawful today.”(Id.)

But, showing that universities are doing this will become very fact-specific in litigation, and will be difficult and expensive to show, unless a “smoking gun” can be found, like whistleblowers coming forward stating that they were instructed to admit black students based on their essays.

Solely based on its facts, SFFA v. Harvard has nothing to do with employment law or employers engaging in “voluntary affirmative action”. But, the Gorsuch/Thomas concurrence suggests that there might be future movement by the Supreme Court towards overruling United Steelworkers of America v. Weber, and a finding that employer “voluntary affirmative action” is illegal under Title VII of the Civil Rights Act.

Unlike the Roberts majority opinion, the Gorsuch concurrence, joined by Thomas, focuses on an analysis of the legality of the UNC and Harvard affirmative action programs from the perspective of Title VI of the Civil Rights Act of 1964:

“Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either.” (SFFA v. Harvard, 20-1199, decided June 29, 2023, Gorsuch concurrence.)

What is important about the Gorsuch concurrence from the standpoint of employment law is that Gorsuch believes that Title VII, the law on employment discrimination, should be read the same as Title VI, the law on federal funding to universities and other institutions:

“If this exposition of Title VI sounds familiar, it should. Just next door, in Title VII, Congress made it “unlawful . . . for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). Appreciating the breadth of this provision, just three years ago this Court read its essentially identical terms the same way. See Bostock, 590 U. S., at ___–___ (slip op., at 4–9). This Court has long recognized, too, that when Congress uses the same terms in the same statute, we should presume they “have the same meaning.” IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005). And that presumption surely makes sense here, for as Justice Stevens recognized years ago, “[b]oth Title VI and Title VII” codify a categorical rule of “individual equality, without regard to race.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 416, n. 19 (1978) (opinion concurring in judgment in part and dissenting in part) (emphasis deleted).”(SFFA v. Harvard, 20-1199, decided June 29, 2023, Gorsuch concurrence, emphasis added.)

After indicating that Title VI and Title VII have similar terms, and should be presumed to have the same meaning. Gorsuch then went on in his concurrence to find that affirmative action programs in education, where the educator receives federal funding, are illegal. In fact, he stated that they are even more illegal under Title VI than they would be under just the equal protection clause, because the strict scrutiny standard might allow for some limited exceptions, while Title VI does not:

“In other respects, however, the relative scope of the two provisions is inverted. The Equal Protection Clause addresses all manner of distinctions between persons and this Court has held that it implies different degrees of judicial scrutiny for different kinds of classifications. So, for example, courts apply strict scrutiny for classifications based on race, color, and national origin; intermediate scrutiny for classifications based on sex; and rational-basis review for classifications based on more prosaic grounds. … By contrast, Title VI targets only certain classifications—those based on race, color, or national origin. And that law does not direct courts to subject these classifications to one degree of scrutiny or another. Instead, as we have seen, its rule is as uncomplicated as it is momentous. Under Title VI, it is always unlawful to discriminate among persons even in part because of race, color, or national origin.”(SFFA v. Harvard, 20-1199, decided June 29, 2023, Gorsuch concurrence, emphasis added.)

The Gorsuch concurrence in SFFA v. Harvard invites other lawsuits under Title VII against employers that use “voluntary affirmative action” or other “Diversity Equity and Inclusion” policies to discriminate against whites or males. In fact, I think the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, could rule, long before the US Supreme Court ever does, that Title VII should be read the same as Title VI under SFFA v. Harvard, and declare many affirmative action and DEI programs illegal.

The Fifth Circuit Court of Appeals is considered one of the more “conservative” in the nation, which means there is already an ideological bent in that court that would disfavor affirmative action and DEI programs. Ironically, in United Steelworkers of America v. Weber, the 5th Circuit found in favor of the white Plaintiffs. (“A divided panel of the Court of Appeals for the Fifth Circuit affirmed, holding that all employment preferences based upon race, including those preferences incidental to bona fide affirmative action plans, violated Title VII’s prohibition against racial discrimination in employment.”, United Steelworkers of America v. Weber, 443 U.S. 193, 200 (1979).) This indicates that the 5th Circuit would probably prefer to see United Steelworkers of America overruled, and could use the Gorsuch and Thomas concurrence from SFFA v. Harvard to take up the issue. Even though the 5th Circuit cannot directly subvert the United Steelworkers decision themselves, they could use the reasoning in SFFA v. Harvard to perhaps limit United Steelworkers in some meaningful way.

The desire amongst some Circuit Judges on the 5th Circuit to use Title VII to outlaw affirmative action programs by employers is already there. For instance, in Hamilton v. Dallas County, as part of his concurrence to an en banc decision, one Judge said:

“Congress enacted the Civil Rights Act of 1964 to protect every American against every form of prohibited discrimination—not just certain favored classes against certain disfavored forms of discrimination. For decades, however, the judiciary has distorted the Act in various ways to protect some Americans, while excluding others.” (Hamilton v. Dallas County, No. 21-10133, August 18, 2023, James C. Ho, Circuit Judge, concurring, emphasis added.)

Hamilton v. Dallas County involved an allegation of sex discrimination under Title VII. The Dallas County Sheriff’s Department had instituted a sex-based policy to determine when employees who monitor prisoners in jail would get their two days off per week. Men could select full weekends off, that is both Saturday and Sunday. Female deputies could pick either two weekdays off or one weekend day plus one weekday. (For instance, a woman could pick Friday and Saturday, or Sunday and Monday, but a woman could not pick Saturday and Sunday off.) The reason for this was it was believed that it would be unsafe for all the men to be off during the week and that it was safer for the men to be off on the weekends. (Hamilton v. Dallas County, No. 21-10133, August 18, 2023, footnote 2.) (The exact reason the County of Dallas believed this, I don’t know, and I don’t know how meritorious this argument was.)

The district court granted Dallas County’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), meaning the case was dismissed quite early, soon after the lawsuit was filed. Based just on the pleadings of the Plaintiffs, the trial court found that there was insufficient factual basis in the Plaintiff’s pleadings to support a plausible claim for relief, and dismissed their case. (Basically, even if what the Plaintiffs said in their pleadings was completely true, they would still lose.) The Plaintiffs then appealed to the Fifth Circuit Court of Appeals in New Orleans. The reason for the early dismissal turned on a policy in the Fifth Circuit called the “ultimate employment decisions” requirement. Basically, this said that an adverse employment decision action for Title VII employment discrimination claims turned on whether the discrimination involved an “ultimate decision”, such as hiring, granting leave, discharging, promoting, and compensating an employee. An employer was not going to be found liable in the Fifth Circuit merely for taking a discriminatory action that didn’t affect one of these “ultimate decisions”. So, mere changes to employee work schedules, for instance, would not be an “ultimate decision” and therefore could not form the basis of a Title VII claim in the Fifth Circuit. In essence, it limited the scope of Title VII in employment discrimination. In an en banc decision, the Fifth Circuit overruled itself and discarded the ultimate decision rule as having no basis in the text of the Civil Rights Act:

“Nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions. To be sure, the statute prohibits discrimination in ultimate employment decisions—’hir[ing],’ ‘refus[ing] to hire,’ ‘discharg[ing],’ and ‘compensation’—but it also makes it unlawful for an employer ‘otherwise to discriminate against’ an employee ‘with respect to [her] terms, conditions, or privileges of employment….Restricting liability under the statute to ‘’ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating’’34 renders the statute’s catchall provision all but superfluous. This we cannot do.’”(Hamilton v. Dallas County, No. 21-10133, August 18, 2023, emphasis added.)

In his concurrence Circuit Judge James C. Ho went on to say that not only was Title VII not limited to “ultimate decisions”, but the plain textual reading of the statute also meant that its protection was not limited to any particular racial group or groups. He cited, with favor, Justice Department positions that various DEI and affirmative action policies would also violate Title VII:

“As the Civil Rights Division of the Justice Department noted during en banc oral argument in this case, if “a law firm is having a lunch to do CLEs and you have a policy that says we’re only going to invite women but not men to this CLE lunch, that’s of course actionable, and that’s of course a term, condition, or privilege of employment” under Title VII. Audio of Oral Arg. 23:00–23:29. The Justice Department agreed that “a lot of law firms do that.” Id. at 25:35. It also noted that “work assignments . . . happening on the basis of race” are likewise actionable under Title VII. Id. at 27:12–20.”(Hamilton v. Dallas County, No. 21-10133, August 18, 2023, James C. Ho concurrence.)

Note that Circuit Judge Ho said that a law firm continuing legal education program for only women would violate Title VII in the Fifth Circuit because it is a “..term, condition, or privilege of employment…”, and he also, implicitly, says it still violates Title VII, even though it is aimed at men. Presumably, a meeting of black associates or partners at a law firm that was limited to only black associates and partners would also violate Title VII in Judge Ho’s, and the current Justice Department’s, opinion. He also noted that work assignments are happening on the basis of race, and should be considered illegal under Title VII. For instance, I could see a company sending a black sales representative to meet with a black buyer, which would be a violation if this viewpoint prevailed. Or, in the entertainment industry, perhaps, a producer is assigned to television shows with black audiences or black record artists solely because the producer is also black. All of this would (and should) be made illegal under Title VII of the Civil Rights Act.

Circuit Judge Ho invited future litigation against corporate DEI and affirmative action programs by also saying:

“The Justice Department is not alone in expressing these concerns. See, e.g., Andrea R. Lucas, With Supreme Court affirmative action ruling, it’s time for companies to take a hard look at their corporate diversity programs, Reuters, June 29, 2023 (“Title VII bars . . . a host of increasingly popular race-conscious corporate initiatives: from providing race-restricted access to mentoring, sponsorship, or training programs; to selecting interviewees partially due to diverse candidate slate policies; to tying executive or employee compensation to the company achieving certain demographic targets; to offering race-restricted diversity internship programs or accelerated interview processes, sometimes paired with euphemistic diversity ‘scholarships’ that effectively provide more compensation for ‘diverse’ summer interns.”); U.S. Senator Tom Cotton, Cotton Warns Top Law Firms About Race-Based Hiring Practices, July 17, 2023.” (Hamilton v. Dallas County, No. 21-10133, August 18, 2023, James C. Ho concurrence.)

There is a rich (dare I say, “diverse”) number of potential corporate and business targets out there for a Plaintiff’s attorney to choose from. Imagine all the DEI programs major corporations have implemented over the past fifteen to twenty years. There is also a lot of evidence out there, since many of these corporations have not even tried to hide what it was they were doing. They openly discriminated against whites and males as a badge of honor. “The Lost Generation” by Jacob Savage, published in Compact magazine on December 15, 2025, discusses blatant discrimination against white males in favor of women and minority candidates in media, journalism, TV and film, and academia. All of these companies should be sued.

The courts, and the Fifth Circuit in particular, are ready to start taking claims of employment discrimination against white males seriously. I personally believe that the Civil Rights Act of 1964, and all subsequent acts, should be repealed. This is because I believe in freedom of association and freedom of contract. I believe I have an inalienable right to associate with anyone, or to not associate with them. I believe others have the same right. I don’t believe I owe any minority, or group of minorities, anything. Certainly not my time or association. The only thing I owe to people of other races is the same thing I owe anyone: to respect their rights to life, liberty, and property. In a truly free market, with actual capitalism that respected rights to property, freedom of contract, and association, the owner of a business would be free to racially discriminate or not, as they choose. (I think that those businesses that did racially discriminate for irrational reasons would lose profits as a result, but that is their decision to make.)

The reality is that if capitalism, freedom of contract, and freedom of association were legally instituted tomorrow, there would likely be plenty of affirmative action for minorities by companies that would choose to engage in such discrimination against whites. Does anyone really doubt that these leftist businessmen with white guilt, like Mark Zuckerberg or Sergi Brin, wouldn’t? I think affirmative action is unjust and bad for everyone, including black people, but you certainly should be free to discriminate against whoever you want, if it’s your property and your business.

But, in the meantime, while these laws still exist, I fully support the extension of the principles in SFFA v. Harvard to Title VII employment discrimination matters. We should end all affirmative action and DEI programs in all companies by force of law, as long as the law exists. Until the Civil Rights Act is repealed, everyone, both black and white, should feel the pain equally.

W. Dean Cook

The Biden Administration’s “Friendly Censorship”

Murthy v. Missouri is a case that was recently argued before the United States Supreme Court. It involves the allegation that the Biden administration in 2021 coerced social media companies such as Facebook into removing content that concerned COVID-19 and the COVID-19 vaccine, election integrity, and other matters considered important to the Biden Administration.

The factual findings of the trial court in the case are disturbing, if true:

“For the last few years—at least since the 2020 presidential transition—a group of federal officials has been in regular contact with nearly every major American social-media company about the spread of “misinformation” on their platforms. In their concern, those officials—hailing from the White House, the CDC, the FBI, and a few other agencies—urged the platforms to remove disfavored content and accounts from their sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day. “ (5^th Circuit Opinion, Case: 23-30445, Document: 00516889176 , Date Filed: 09/08/2023, Pg. 2) (https://law.justia.com/cases/federal/appellate-courts/ca5/23-30445/23-30445-2023-09-08.html)

The Biden Administration and its defenders seem to have responded to these allegations by saying that the factual findings of the trial court are simply mistaken. They claim that the trial court took things out of context, or just outright misrepresented facts:

“While the legal questions presented are legitimate, a substantial amount of the underlying evidence now before the Court in this case is problematic or factually incorrect. Snippets of various communications between the government, social media executives, and other parties appear to be stitched together – nay, manufactured – more to support a culture war conspiracy theory than to create a credible factual record” (https://www.justsecurity.org/93487/a-conspiracy-theory-goes-to-the-supreme-court-how-did-murthy-v-missouri-get-this-far/)

The government says it was merely engaging in its own speech to combat what it viewed as “bad speech”, and that it did not coerce social media companies into taking down social media posts it disagreed with:

“Brian Fletcher, the principal deputy solicitor general of the United States, argued that the government was legally using its bully pulpit to protect the American public.” (https://www.washingtonpost.com/technology/2024/03/18/supreme-court-social-media-biden-missouri/)

Whether the Biden administration was merely engaged in its own speech or whether it intentionally used the threat of force to coerce social media companies into censoring the posts of their users will be determined through the court process.

Even if the government was simply using its own speech to counter what it viewed as “bad speech”, without any intentional threat of coercion, given the reach of government when it comes to regulating the economy, I think companies and businessmen must, of necessity, take into account what a President and his administration say.

In 1962, Ayn Rand wrote an article titled “Have Gun, Will Nudge” in which she discussed the efforts of then head of the FCC, Newton N. Minow, to “encourage” broadcasters to air certain types of “educational programs”. She noted that the arbitrary power held by the FCC in the form of its licensing of broadcasters meant that it didn’t have to engage in explicit censorship. Broadcasters would attempt to discern through their contacts and back-channels with Washington what the FCC officials would like to see on the airwaves, and then provide it:

“No, a federal commissioner may never utter a single word for or against any program. But what do you suppose will happen if and when, with or without his knowledge, a third-assistant or a second cousin or just a nameless friend from Washington whispers to a television executive that the commissioner does not like producer X or does not approve of writer Y or takes a great interest in the career of starlet Z or is anxious to advance the cause of the United Nations?” (Ayn Rand, “Have Gun, Will Nudge” https://ari.aynrand.org/issues/government-and-business/regulations/pov-have-gun-will-nudge/ )

For the people running a television station, or, today, a social media company, not listening to what the President wants them to post or not post would be almost suicidal. The President has enormous power to bring any company to its knees through executive orders and arbitrary regulations. It doesn’t even matter if the President and his administration intends to engage in censorship. The massive and arbitrary power that the President, and the government in general, holds over any company through economic regulation means any broadcaster or social media company has to take into account what the government wants, just as a matter of self-preservation. If Facebook or Google believes that keeping up certain social media posts might have even a one percent chance of getting them slapped with an antitrust suit, the cost of keeping up the post just isn’t worth the benefits. That’s why true freedom of speech likely isn’t even possible today. As Ayn Rand noted:

“The right to life is the source of all rights — and the right to property is their only implementation. Without property rights, no other rights are possible.”(“Man’s Rights”, Ayn Rand https://ari.aynrand.org/issues/government-and-business/individual-rights/ )

Dallas County COVID-19 Stay At Home Orders – My Analysis

Quarantine Law And Constitutional Law Outline

I have created an outline in PDF format of Constitutional legal issues associated with quarantine law:

COVID-19-Constitution-Quarantine-V-1-0

Corona Virus Questions

By this point, everyone knows what COVID-19 is, so this topic needs little introduction. The public, media, and political reaction to it is certainly new in my lifetime. People in their sixties or seventies may remember a time when there were health scares of this magnitude, with smallpox or polio, but no one born after about 1965 really remembers them. The last known smallpox case occurred in 1977, and polio was drastically reduced in the late 1950’s, after a vaccine was developed.

The question that I cannot quite answer in my mind is this: Is the public reaction warranted? Even if the reaction is merited, I think we need to think carefully about what solutions to the problem are justified. Sometimes, as the old saying goes: “The cure is worse than the disease.”

Is Corona Virus a great danger? There is sometimes great difficulty in knowing what the right answer is on a complex scientific question, where even the most knowledgeable are operating on limited information. This article, written by a medical doctor makes the same point:

“All of this whiplash points to one perhaps uncomfortable thing: no one really knows how bad COVID-19 is, and how much damage it could eventually lead to.” https://blogs.scientificamerican.com/observations/uncertainty-in-a-time-of-coronavirus/

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Some in the media and on the political left have criticized Donald Trump for being too slow in recognizing or reacting to the virus. This can simply be an error of knowledge. No one is omniscient. This is precisely why you shouldn’t rely on an all-powerful Federal government to make decisions for you. No single human mind can hold that much complex information at one time and make a decision about what is best for your life and situation. It’s why Capitalism and constitutional republicanism are the proper system.

Government employees are poor at dealing with a disaster because the system they operate in is one of rules. There is no “upside” for a government employee who “thinks outside the box” or innovates. If they succeed, they’re unlikely to get a raise. If they fail, and it gets out they broke the rules, they’re likely to get fired. I noticed this before in a different blog entry about the Ebola Virus outbreak that occurred in Dallas:

“This is the essential problem with all government. Government sets rules that are (ultimately) enforced by the barrel of a gun. The CDC bureaucrats only act if there is a rule telling them to act -which is as it should be. So, its no surprise that when this nurse was under the temperature threshold for their no-fly rule, no one at the CDC was going to “stick their neck out” and recommend that she not fly. A bureaucracy doesn’t reward incentive by its employees like a for-profit business -so there would only be “downside” if a CDC employee took initiative.” (http://deancook.net/2014/10/16/i-need-wider-powers/)

Since I wrote this blog entry, I found a great example of the contrast between the culture of initiative that a free market encourages and incentivizes, and the “culture of conformity” that government creates. “The Checklist Manifesto” by Atul Gawande discusses how badly State and Federal government failed after Hurricane Katrina. The real, unsung heroes of that disaster were the executives and employees of Walmart. (http://atulgawande.com/book/the-checklist-manifesto/ )

“The government’s command-and-control system became overwhelmed, with too many decisions to make and too little information available. But authorities clung to the traditional model. They argued with state and local government officials over the power to make decisions, resulting in chaos. Supply trucks were halted and requisitions for buses were held up while local transit buses sat idle.

Walmart executives, however, took the opposite approach from command and control. They realized Walmart’s Hurricane Katrina response could make a huge difference. Recognizing the complexity of the circumstances, CEO Lee Scott announced to managers and employees that the company would respond at the level of the disaster. He empowered local employees to make the best decisions they could.” https://www.shortform.com/blog/walmart-hurricane-katrina/

Walmart dealt with Hurricane Katrina better than the government because private enterprise encourages initiative, while government jobs encourage “covering your ass”.

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What changes should we make in the face of Corona Virus? Even if we need to adjust our behavior temporarily, I think that any permanent changes in our society aren’t desirable, regardless of the risks. To understand this, ask yourself a simple question: “What is life?”

Is life just continuing to breath and maintaining our body’s homeostatic equilibrium? I read an article about how grandparents are having to be isolated from their families and grandchildren, since the elderly are most at risk when it comes to Corona virus. (The mortality rates are much higher for people in their seventies and eighties.) (https://www.usatoday.com/story/news/nation/2020/03/18/grandparents-cant-babysit-kids-at-home-coronavirus-fears/5072304002/)

Reading the article, I had to wonder: How long does Grandma want to go without seeing her grandchildren? How long does Grandma want to live in isolation like that? Does grandma think that life is about nothing but keeping her heart beating and her lungs pumping air? (Ask your grandma what she thinks.)

Do we want to permanently shut down movie theaters, ball parks, and churches, just because we might catch a disease? Is life worth living without social contact with other people?

Clearly, shutting down public events and isolating grandma and grandpa has to be temporary, in the face of an emergency. It cannot go on forever. Life is about more than maintaining homeostasis.

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Now, let’s turn to some of the governmental measures that have been proposed, or even implemented in the face of this threat. (Which may very well be a real threat -I don’t know for sure.) Is governmental force the answer to the Corona virus? Is a totalitarian dictatorship more “efficient” at dealing with something like this?

The Chinese were certainly quick to build hospitals and implement quarantine…I mean…after their attempt to cover it up failed. The Chinese doctor, Dr Li Wenliang, who originally discovered the virus and tried to warn people was initially arrested and threatened by the Chinese government. https://www.bbc.com/news/world-asia-china-51364382

Additionally, it appears that the Chinese government’s lack of transparency and openness about the virus meant the Western world didn’t find out about it until it was too late to do anything to contain it:

“China has a history of mishandling outbreaks, including SARS in 2002 and 2003. But Chinese leaders’ negligence in December and January—for well over a month after the first outbreak in Wuhan—far surpasses those bungled responses.” https://www.theatlantic.com/ideas/archive/2020/03/china-trolling-world-and-avoiding-blame/608332/

The Chinese government’s failure demonstrates a direct relationship between the initiation of government force and the spread of this disease. A free society and a free press would have had a much better chance of containing the initial outbreak.

Once the virus was outside China, some freer countries seem to have handled it better than others. Italy has now surpassed China in the number of deaths. But, South Korea has done remarkably well:

“A week after the Jan. 27 meeting, South Korea’s CDC approved one company’s diagnostic test. Another company soon followed. By the end of February, South Korea was making headlines around the world for its drive-through screening centers and ability to test thousands of people daily.” https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW

This Reuters article goes on to say that the US response hasn’t been as good. But, it notes that a lot of this had to do with bureaucracy at the FDA:

“How the United States fell so far behind South Korea, according to infectious disease experts, clinicians and state and local officials, is a tale of many contrasts in the two nations’ public health systems: a streamlined bureaucracy versus a congested one, bold versus cautious leadership, and a sense of urgency versus a reliance on protocol.” https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW

Additionally, South Korea is a much smaller country than ours. It’s not much bigger than some of our states. This suggests that what is needed is a political apparatus that is closer to the people, and closer to the problem. Unfortunately, we have ceded too much power to the Federal government, rather than letting individual state governments deal with local problems, which they are closer to, and will have a better feel for.

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What about trying to stop the problem at our borders? Is a temporary restriction on people entering the country from certain areas of the world, especially China, desirable? I’ve wondered if a lot of U.S. Hispanics might not have changed their tune. Are they now wondering why Trump isn’t doing more to keep Asians out of the US? A lot of the immigration debate is driven by tribalism on both sides. As I coincidentally mentioned some time ago, I doubt most Hispanic-Americans would be as against immigration restrictions if the majority of immigrants were Chinese:

“Would the ‘Hispanic leadership’ in the Democratic Party care so much about immigration if most of the immigrants were German, or Chinese? (I doubt it.) Obama’s policies on immigration were another appeal to a tribalistic pressure group, just like his support of “Black Lives Matter”.” http://deancook.net/2018/12/17/barack-obama-tribalist-in-chief/

At the beginning of the Twentieth Century, a lot of immigration restriction was aimed at preventing Chinese entry into the country for precisely this reason. They brought epidemics with them. For instance, San Francisco was the location of a bubonic plague outbreak in 1900-1904, which was focused in that city’s Chinatown. https://www.sacbee.com/news/california/article240714036.html

All that said, I am in favor of free immigration, because it is consistent with the free market. But, requiring people to undergo a short quarantine period before entering the country could certainly be a reasonable regulation. Denying entry to people specifically known to carry communicable diseases can also likely be justified. You don’t have a right to knowingly get other people sick with your germs -that is an initiation of physical force, just like if someone recklessly drove a car and killed someone. I do, however, think this is a matter for state government, not federal. http://deancook.net/2014/10/30/i-just-realized-there-is-no-authority-under-the-constitution-for-the-feds-to-impose-a-21-day-quarantine-on-persons-from-africa/

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What about some of the aggressive measures that have been implemented at the State or local level in the United States? Are they justified? For instance, San Francisco is only allowing people to leave their homes to get groceries or pick up essentials. https://www.yahoo.com/entertainment/greater-san-francisco-area-residents-195831637.html

Are cities like New York, San Francisco, and Dallas doing the right thing with aggressive, involuntary mass-quarantine measures? (Such as restaurant closings, bar closings, “shelter in place orders”, and the like?)

The “shelter in place” order in San Francisco pretty much has to count on voluntary compliance because there isn’t sufficient governmental force in place to enforce it. How will the cops know if you’re going to the grocery store or not? What if you say you’re not carrying ID? Since homeless people are exempt from the order, how will a cop know you’re not homeless? Short of a system of police checkpoints, an internal “passport system”, and heavy penalties for anyone violating this order, it is unenforceable without voluntary compliance.

In fact, compliance with quarantines and social distancing measures has to be almost entirely voluntary. As a free society, we don’t have the systems in place to enforce mass quarantines against people’s will. (And, it’s not desirable.)

I suppose someone could argue something like: “Emergencies can happen. Systems, like the ability to enforce mass quarantine, in San Francisco and New York, are needed. We need systems in place for mass lock downs, holding people without due process, and violations of the freedom of assembly.”

But, what is an “emergency”? It’s a temporary unexpected calamity. If virus outbreaks happened all the time, they wouldn’t be emergencies. We’d develop technologies and social customs to deal with them. (Everyone would learn to wear bio-hazard suits in public, people would insist that others show them a “clean test result” before letting them into their homes, etc.) No police state would be necessary in that case. The free market and freedom of association could handle it.

But, if virus pandemics remain unlikely, “outlier”, events, as they probably will, then putting into place governmental systems and sufficient force to be able to enforce a “shelter in place” order like they are proposing in New York, and have implemented in San Francisco, could be abused by any would-be tyrant or oligarchy looking to seize power and subvert constitutional republican government.

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If governmental initiation of physical force is never the answer, even in an emergency, then what should be done?

First, it isn’t a good idea to wait until the emergency occurs to figure this stuff out. We need to think carefully about what sorts of temporary governmental measures are acceptable when emotions aren’t running high. The matter requires sober and careful consideration by legislatures and courts, with an eye to due process, basic civil liberties, property rights, and the sanctity of the individual. But, since we are apparently already in the emergency, I would like to propose some “operating principles” for judging different measures being proposed by our Federal and State governments in dealing with COVID-19.

(1) The more each individual can choose their own level of risk, the better.

People can choose whether they want to go to bars, restaurants, and gyms. People can choose if they want to fly on an airplane, or travel on a cruise ship. No one else is being forced to do these things, and mass-restrictions on freedom of assembly should be used extremely sparingly.

I recognize that one person’s decision to take the risk affects other people’s lives. If I go to a restaurant, and get infected, then I could potentially infect other people. But, is mere risk of harming others justification for long-term restrictions on freedom of assembly when there is no evidence that the particular people assembling are sick? Think about this in other contexts. We could save a lot of lives by outlawing cars. People who drive in cars put pedestrians and bikers at risk, so they are, in some sense, putting people who didn’t chose to drive at risk. No one really “needs” a car, do they? Why don’t we get rid of them? Because the inconvenience on our lives is too great.

(This is not to say quarantines are never justified, as further discussed below.)

(2) The more local government can decide on what to do, the better.

County decisions are better than State decisions, and State decisions are better than Federal. Small countries like South Korea can react better than large countries, because their leaders are closer to those they represent. In the United States, each state should be viewed more as its own country, and allowed to deal with the problem, free from Federal interference.

(3) Particular people, who are a known objective threat, should be treated and quarantined, while respecting their due process rights.

The focus should be on encouraging people to be tested and treated through voluntary measures. This seems to be part of what has made South Korea so successful in dealing with the problem:

“The preventative measures being taken in South Korea have so far involved no lockdowns, no roadblocks and no restriction on movement.

Trace, test and treat is the mantra. So far this country of over 50 million people have been doing their bit to help. Schools remain closed, offices are encouraging people to work from home, large gatherings have stopped.” https://www.bbc.com/news/world-asia-51836898

Forced quarantine should be a last resort, and only when there is good evidence someone has the virus. Courts should be set up to provide Skype or other teleconferencing hearings for those quarantined to ensure their due process rights. No one should be held, or forced to stay in their home, more than 24 hours without the State getting approval from a court.

(4) Mere economic hardship should not be grounds for a bailout at other people’s expense.

Where does that end? If a restaurant can be bailed out because no one wants to eat there anymore, then what about all the other people who, in normal conditions, see their business fail? A natural disaster is an insurable event. If a business owner is concerned about business shutdown due to an emergency, then contact Allstate or State Farm, not the Feds.

The Trump plan to give everyone $1,000 makes no sense. Goods aren’t produced by the government. If you print an extra $1,000 and somehow magically put it in everyone’s bank account overnight, then they’ll just bid up the price of goods and services, since the quantity of goods and services will remain the same. That’s a prescription for price inflation.

But, with that said, when there is government-enforced quarantine, there is a good argument for that particular individual or business being compensated. If a person is forced not to work for two weeks because we, as a society, have said they might spread a disease, then that particular individual probably should be entitled to some form of support or compensation during that time-period, because it is essentially a governmental taking of private property under the Fifth Amendment of the Constitution.

(5) Fundamental civil liberties, rights to free assembly, freedom of movement, and due process must be observed.

But, this can occur within the specific context of an emergency. The freedom of assembly is not the freedom to knowingly or even negligently infect other people with your disease. People with specific, known communicable disease can be quarantined, with due process.

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A natural disaster can call for highly unusual government responses, but there is a limit. Even in an emergency, there are things that should not be done, because, in the long-run, free societies have proven to be more prosperous, healthy, and “pro-living” than the alternative, and would-be tyrants will tend to find emergencies, if not manufacture them, to justify the seizure of power.

Three Views of The Concept of “Individual Rights”

There are essentially two views on individual rights today:

(1) They are provided by positive law, by a majority or super-majority. So, for instance, you have rights because a super-majority of people ratified the Constitution and that is respected down to today.

(2) They are based in some sort of “transcendent morality”. Provided by god or something like that. Without a supreme being there would be no rights.

Group 2 will criticize group 1 by saying that they don’t actaully advocate rights since they are just permissions granted by a majority (or super-majority) of people. Group 1 will criticize group 2 by saying that there is no scientific evidence for this “transcendent morality” that supposedly establishes rights.

The criticism that both of these groups make of the other has some merit. Since there is no evidence of god and it must be accepted on faith, which is nothing more than somebody’s feelings, then this view of rights seems to have no basis other than in one’s feelings. If rights have no basis other than in the majority’s feelings, then they are only necessary so long as the majority feels that way.

Ayn Rand proposed a different approach. She presents rights as an aspect of her overall system of morality. Moral principles are essential according to Rand because: (1) “Existence exists”. In other words reality is what it is, and has a certain nature. (2) Human beings also have a certain nature, and *if* they want to live, they need to take certain actions. (Grow crops, hunt for animals, build shelter, make clothing, etc.) Human beings must adopt certain “mental strategies” or “guides to action” that will generally lead them to obtain the things they need to live. These “guides to action” are necessary because the human mind has trouble dealing with numerous concrete things in reality without tying them together mentally and recognizing that they are sufficiently similar to other concrete things to be treated the same. For instance, if you have no concept of, “tiger”, then you will treat every such animal you encounter as behaviorally and physically unrelated to the previous tigers you’ve encountered, and you will fail to recognize the benefits and dangers of being around such an animal, and will tend not to deal with tigers succesfully.

Such “mental strategies” or “guides to action” can be called “virtues”. The dictionary has various definitions of “virtue”, but the closest one to what is meant here is “a good or useful quality of a thing.” A human being has a “good or useful quality” if he adopts these guides to action because they will help him to live. For instance, human beings must judge others to determine if they are a benefit or a danger to their survival. This is the virtue (the guide to action) of justice. Human beings must generally refrain from lying when dealing with others in order to maintain their trust so that they will want to deal with them in the future. (This is the principle/virtue of honesty.) Human beings must act in accordance with these principles because simply holding them as ideals without taking action in accordance with them will cause your mind to slowly become disconnected from reality and will make rational thought more difficult. (The principle/virtue of integrity.)

Similarly, the principle of “individual rights” is a guide to action when dealing with other human beings. Since other human beings can be assumed to want to live just as much as you do, then you must give them an “initial presumption” that they will take action to maintain their lives. They will produce the material values necessary for their survival -property. Just as you must not have your property taken from you by means of physical force without your permission, so must they. As such, you must adopt a sort of baseline guide to action when dealing with all other human beings. This is the principle of individual rights, and the specific right that encompases property is the right to private property. (More generally, all rights are subsumed under “the right to life”, which means the right to live the life of a rational being.) If individual human beings are going to live in a social environment and gain the benefits of living together, they must have their individual rights respected:

“‘Rights’ are a moral concept — the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others — the concept that preserves and protects individual morality in a social context — the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.” (Man’s Rights, by Ayn Rand)

As an aside, the concept of “government” comes in because there is a temptation to “cheat”, and violate the rights of others while hoping that they will still respect yours. For instance, there is the temptation to rob someone at gunpoint and take their property, or just to pilfer it while they aren’t looking. If you are suspected of this, though, then others will use force in retaliation to stop your initial use of force. Government helps keep people honest by promulgating a list of prohibited acts that are widely-recognized as rights violations. Additionally, it isn’t always easy for others to tell who the aggressor is and who the victim is in a given situation. For instance, if you come upon someone with a gun held on him, is he the victim or the aggressor? Perhaps the person holding the gun on him was just robbed, but perhaps he is the robber? Government is created to provide for an orderly protection of individual rights by a recognized central authority that everybody generally trusts to be a rights-protector.

Going back to where we started: How is this view of individual rights different from groups 1 and 2? Both group 1 and 2 tend to present the concept of “rights” as something that is “nice to have”, but as unessential to the task of living one’s life. Both group 1 and 2 tend to think that a working social order is somehow possible even without respect for individual rights. They generally see rights as “altruistic” -a restraint from complete self-interest. Group 2 says rights are a gift from god, but if they are violated by persons here on Earth, there won’t be any consequences for doing so. (You might go to hell when you die, is all.) Group 1 says that the majority of people just feel that rights are nice to have, but think that a functioning society is possible without rights, and might even be more “efficient”. Ayn Rand says that “society” is nothing more than a number of individuals, and if the individual cannot live in society, then there can be no society. Ayn Rand’s concept of individual rights holds that they are necessary for the individual person to live in a social context, and that that “society” is only good to the extent that it is beneficial for the individual to live in it.

In essence, both groups today are partly right and partly wrong. Group 2 is right that group 1 seems to have no basis for rights other than the whim of the majority. Rand’s conception of rights isn’t “whim”, but the “law of nature”, i.e., the law of identity. Human beings are what they are -they have a certain nature. If they are going to live in a social environment, then others must respect their life and property by refraining from the use of force “as an initial matter”. I say “as an initial matter” because once a specific individual has demonstrated with a sufficient level of certainty that he will not refrain from the use of force to deprive others of their life or property, then force can and should be used in retaliation.

A society that tends not to respect rights will not exist for long because the individuals that comprise it cannot survive. Rights have a functional basis in the facts of reality.

Group 1’s criticisms of Group 2 has merit insofar as group 2 can present no evidence for their “transcendent” basis for individual rights. I’d also note that regardless of whether Group 2 is right about the existence of god, if they believe that reality has a certain nature, and to the extent that they want to live, then Rand’s conception of rights should also be persuasive to them, and can form the basic intellectual foundation upon which a government can be constructed, regardless of whether we all agree about the existence of a creator.

“Natural Born Citizen”

This whole thing about whether Ted Cruz is a “natural born citizen”, from the standpoint of original meaning, is fairly interesting. (I do not know, one way or the other.) I started looking at some stuff on line, and it quickly became apparent it would take a good bit for research, and I just don’t know that I care enough. I did look at Blackstone, who would have been considered authoritative at the time of the drafting and ratification of the Constitution, and he offers a definition of “natural born subject”, for purposes of British law at the time:

“Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. ”

He then later says that some persons born outside the dominions of the crown would still be considered “natural born subjects”:

“When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions:…”

He then seems to imply that at common law one such exception were persons born to ambassadors of the King while abroad:

“Yet the children of the king’s embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador.”

Blackstone also seems to say that merchants’ children born abroad were also considered to be “natural born subjects” at common law:

“To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants.”

Additional disabilities against being a “natural born subject” of the King were also removed by statute:

“But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”

So, according to original meaning, if Blackstone would have been authoritative, then any person born outside the United States to a parent (specifically a father) who was a natural-born subject, was also a “natural born subject” themselves.

In the case of Ted Cruz, it was his mother that was a US Citizen at the time of his birth. So the question is: Assuming Blackstone is authoritative on original meaning and that my interpretation of Blackstone is correct, then would a person born from a mother, not a father, who was a US Citizen be considered a “natural born citizen”?

What Is Wrong With Prohibiting Persons on the “No Fly” List From Purchasing Guns

The Senate rightly voted down an attempt to allow the Attorney General to prohibit people on the so-called “no fly list” from purchasing a firearm. Let’s leave aside for the moment the fact that I don’t think this would stop any would-be terrorist from getting a gun (see Paris, France). Let’s also leave aside the fact that the two jihadists in San Bernardino California were not on the “no fly list”, so this law would have made no difference. Regardless of that, this is a terrible violation of Constitutional rights. The Second Amendment guarantees an individual right to own a gun. This important liberty cannot be taken away by the government without due process of law, and that due process must be adequate.

An examination of the proposed statute, contained in an Amendment to an unrelated bill, shows that the “due process” included was very weak. This provision starts near the bottom of page Page S8401 of the proposed Amendment:

“(b) In any case in which the Attorney General has denied the transfer of a firearm to a prospective transferee pursuant to section 922A of this title or has made a determination regarding a firearm permit applicant pursuant to section 922B of this title, an action challenging the determination may be brought against the United States. The petition shall be filed not later than 60 days after the petitioner has received actual notice of the Attorney General’s determination under section 922A or 922B of this title. The court shall sustain the Attorney General’s determination upon a showing by the United States by a preponderance of evidence that the Attorney General’s determination satisfied the requirements of section 922A or 922B, as the case may be. To make this showing, the United States may submit, and the court may rely upon, summaries or redacted versions of documents containing information the disclosure of which the Attorney General has determined would likely compromise national security. Upon request of the petitioner or the court’s own motion, the court may review the full, undisclosed documents ex parte and in camera. The court shall determine whether the summaries or redacted versions, as the case may be, are fair and accurate representations of the underlying documents. The court shall not consider the full, undisclosed documents in deciding whether the Attorney General’s determination satisfies the requirements of section 922A or 922B.”. https://www.congress.gov/amendment/114th-congress/senate-amendment/2910/text

This proposed “due process” has no automatic hearing, just the right to file a petition. A person’s right to a hearing is waived after 60 days of “actual notice” -presumably forever. It contains no right to even examine the documents being used against petitioner. Documents are examined by a judge “ex parte” -which means without the defendant/petitioner present. It uses a “preponderance of the evidence” standard instead of “beyond a reasonable doubt”, like in a criminal case. I am not even sure it allows for one to call witnesses in one’s favor or to confront one’s accuser in court, as required under the 6th Amendment. It’s about like the standard the Department of Motor Vehicles would uses to deprive someone of their driver’s license, which is not a Constitutionally protected right.

The “no fly list”, even as applied to its original intended purpose -flying on an airplane- is fraught with problems and possible Constitutional violations. (See https://www.aclu.org/news/aclu-files-lawsuit-challenging-unconstitutional-no-fly-list) The ACLU has argued that even its original intended purpose is unconstitutional. Furthermore, when it is applied to something like owning a gun, which is a specifically enumerated right under the Bill of Rights, then it is just doubling down on what was already probably a bad law to begin with.

If this law had passed, what would have been next? Imagine the following hypothetical scenario: What if the government decided to deny anyone on the no-fly list a computer because terrorists use computers to meet each other and conspire to commit their crimes? This would clearly have First Amendment freedom of speech and freedom of association implications, and the level of due process required to restrict that freedom are on a par with what would be required before you can send someone to prison. Similarly, the due process required prior to restrict someone’s Second Amendment rights, must be on an equal level.

“Structural” versus “Declaratory” Provisions of the Constitution and Originalism

For purposes of this paper, the provisions of the U.S. Constitution can be broken down into two different major categories. The first category of provisions are “structural”. These include such things as Article I, Section 8, which sets forth the powers of Congress, all of Article II, some of Article III, Article V, and Article VI. (This is not an exhaustive list.)

These structural provisions of the US Constitution set forth things like how a bill becomes a law; that the Congress will be divided into a House and a Senate; how congressmen and the President are elected; how long congressmen, Supreme Court Justices, and the President serve; how treaties are ratified, etc. Most of these “structural provisions” could have been arranged differently. For instance, it is conceivable that the Founders could have decided to have a unicameral legislature (one chamber of Congress instead of two), or that they could have made the President’s term of office 6 years instead of 4.

Most of these “structural provisions” were based in political expediency, or in the historical and social circumstances of the states at the time the US Constitution was ratified. For instance, at the Constitutional Convention, there were two competing “plans”. These two plans represented differing interests of low-population states versus high-population states, as well as other interests of the time.

The first plan, put forth by James Madison and Edmund Randolph, became known as “the Virginia Plan”. It called for a much more unified Republic with state sovereignty significantly reduced by allowing the national legislature to veto all state laws.[1] By way of contrast, the Constitution actually adopted just implicitly says that state laws that are contrary to the Constitution are void under the Supremacy Clause of Article Six, Clause 2, but it does not empower Congress with a cart-blanche veto power over any and all state laws.

Large states like Virginia supported this plan because it would give high-population states more power in the national legislature. Low-population states preferred the New Jersey Plan, which would have created a single unicameral national legislature that kept the one-vote-per-state representation found under the Articles of Confederation. With the New Jersey Plan, small states could more easily prevent large states from enacting legislation that would have trampled on their sovereignty as states. The New Jersey Plan was more of a modification of the existing Articles of Confederation, while the Virginia Plan threw out the Articles altogether.

At the end of the day, neither the Virginia Plan nor the New Jersey Plan was enacted. The document eventually adopted regarding legislative power was reflected in the “Connecticut Compromise”. It retained the bicameral legislative features of the Virginia plan. Also like the Virginia plan, in the lower house, there would be proportional representation based on state population. However, the upper house would have two representatives per state, thereby ensuring that low-population states could not be dominated by high-population states in the new Congress.[2]

The other major category of provisions that can be found in the US Constitution are what I call the “declaratory provisions”[3]. These provisions don’t set forth the powers of government or government officials, or how government is to operate. Instead, they state certain fundamental rights that citizens or residents of the United States possess. Most of these “declaratory provisions” are found in the first Ten Amendments to the US Constitution. For instance, Amendment I says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

These first ten Amendments reflect the Enlightenment tradition of individual rights[4], and were adopted in order to placate the anti-federalist critics of the Constitution. At the time, some state constitutions included a bill of rights[5], and the English legal tradition, as embodied in the Magna Charta, often had a declaration of rights. During the debates leading up to the ratification of the US Constitution, Madison and Hamilton responded to anti-federalist complaints about the lack of a declaration of rights in the proposed document by saying it was unnecessary, and that such a declaration could actually be dangerous to the rights of individuals.

Hamilton’s opposition to a bill of rights can be found in Federalist Number 84:

The most considerable of these remaining objections [of the Anti-Federalists] is, that the plan of the convention contains no bill of rights….I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. (Emphasis added, Federalist Number 84, http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html )

In essence, Hamilton said that there was no need for a declaration of the right of freedom of the press in the new Constitution because the Constitution did not authorize the Federal government to regulate the press at all. Article I, Section 8 sets forth the scope of Congress’ powers, meaning that unless a power is granted to Congress under this section, then it has no power to act. Since there is no power to regulate the press, Congress does not have the power, and it can make no law regarding press or speech.

Additionally, Hamilton goes on in the above-quoted text to note that a bill of rights provision stating that Congress can make no law regarding the freedom of the press could be construed as meaning that Congress has this power –that it might give a “…plausible pretence for claiming that power…” In other words, a bill of rights for Hamilton and Madison, could actually be dangerous because someone might assume that Congress has the power to regulate speech and press, when, under Article I, Section 8, it has no such power.

At the end of the day, Hamilton, Madison, and other supporters of the new Constitution compromised on the issue of a Bill of Rights. In order to avoid the problem of “constructive powers” being implied to the new Federal government under the Bill of Rights, the Ninth and Tenth Amendments were probably included:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[6],[7]

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In other words, the 9^th and 10^th Amendments ensure that the people retain all of their rights, not just the ones set forth in the Constitution, and that the Federal government only has the power to act insofar as it has been delegated powers under the Constitution.

In order to properly understand this distinction between “structural” provisions on the one hand and “declaratory” provisions on the other, it is necessary to move into the realm of political philosophy and philosophy of law. Specifically, it must understood what a constitution is, and what purpose it serves.

Human life is not guaranteed. If one wants to live, then one must take certain actions. Such actions are a necessary condition for living. Man posses a rational faculty that allows him to comprehend laws of nature and to adjust his natural environment, in accordance with those laws, to maximize his chances of survival. For instance, someone recognizes that it is human nature to require protection from the snow, the rain, and the cold. A man’s chances of survival are maximized when he is protected from certain weather conditions. He also notices that certain types of plants and trees, when properly harvested and arranged, can provide a barrier against the weather. So, he gathers naturally occurring elements like trees, rocks, and dirt, and combines them to build a house. Another man recognizes that he needs nourishment, and he learns to build weapons to hunt the lesser animals with, or he makes a plow and plants seeds to grow crops.

Food, shelter, clothing, and other values are necessary for man’s survival, and are typically not found in nature, or are not sufficiently plentiful to sustain man’s life. As his technology and scientific knowledge grows, man’s capacity to improve his life grows. Men have gone, over several millennia, from living in caves to building rockets to the Moon -all thanks to man’s capacity to recognize reality, formulate general principles of cause and effect, and to act accordingly. Man’s mind allows him to recognize cause and effect relationships amongst entities that exist, to recognize his own nature as a living being and a rational animal, and to take action aimed at his survival.

Just as other inanimate entities have a certain nature, so does man. Man is the “rational animal”. He is a living organism of a certain kind and, in principle, he must therefore act in accordance with that nature if he wants to survive. A man cannot live like a plant, by merely sitting and absorbing nutrients from the sun and the soil. A man must engage in a process of thought, and create the wealth necessary for his survival. Men also have the capacity to engage in collaborative endeavors amongst themselves that benefit all participants. Men can trade with other men, which means that individual human beings gain from certain types of associations with each other. If men are going to benefit from each other, they must recognize that each individual living in society acts to provide the things necessary for his survival, if he wants to live. All men must recognize the moral principles defining and sanctioning an individual’s freedom of action in a social context. These moral principles are known as individual rights. Although the list is not exhaustive, fundamental individual rights include the right to live and the right to private property. The right to live is the ultimate individual right, and forms the basis of all rights.

Although most choose to live as traders and producers, some human beings choose not to think and produce their own values. Some will attempt to take what others have produced by means of force. Such people are known as “criminals”. The criminal attempts to gain values from others not by voluntary trade, but by means of force or the threat of force. A criminal substitutes reason and persuasion for force in an effort to gain values from others, or to destroy the values of others. Criminals are force-initiators. They use their fists or a weapon, or they threaten the use of force, to gain what others have produced without their voluntary consent.

If men are to live together in society, then they must create an institution or collaborative agreement to protect those who want to live by means of reason, persuasion, and trade from those who wish to destroy or take the values of others by means of physical force. Although in an emergency, each individual has a right to use force in retaliation and to defend himself from a force-initiator, a formal institution to stop such force-initiators, with objective rules of procedure and fair notice of what is prohibited, is necessary once a society gets beyond a certain point in size and geographic scope. This organization is known as “government”.

There are various reasons why government is necessary if rights are to be protected, and this paper is not meant to be an exhaustive critique of the political philosophy of anarchism, but some of the major reasons why government is essential for the protection of individual rights will be discussed prior to turning to constitutional law.

Without a central governmental authority, it is difficult for others to know whether a person using force in retaliation against a criminal is truly acting in retaliation. Concretely, imagine that a criminal has stolen a person’s property. The victim then goes to the criminal’s house, and holds him at gunpoint while recovering his stolen property. If others see only the victim holding the criminal at gunpoint, how will they know that this is not a robbery? If the criminal’s family or friends see this, and know nothing about the circumstances, then they might mistakenly believe that the victim is the force-initiator, and use force to stop what they perceive as a robbery. This in turn would lead the victim’s family and friends to counter-retaliate, and society could devolve into gang-warfare.

By instituting formal rules of procedure in this situation, misunderstandings can be minimized. The victim of a burglary goes to a socially recognized authority, the police, and files a complaint. The police then investigate, while ensuring that the rights of the accused are respected. Another branch of the government, the courts, then make a determination, in accordance with pre-established rules of evidence and procedure, as to whether the property was in fact stolen, and issue a ruling.

Another important function that only a government can serve is to provide all members of society with prior notice of exactly what actions are violations of individual rights. Citizens elect representatives who then gather periodically and promulgate rules prohibiting certain actions that would violate individual rights. This representative body is generally called a “legislature”, and it sets forth the elements of crimes. For instance, at English Common Law, murder was defined as: (1) unlawful, (2) killing, (3) of a human, (4) by another human, (5) with malice aforethought. The legislature promulgates a statute which sets forth each of these elements, and they must all be proven by a certain standard of proof in a given circumstance before one can be shown to be guilty of the crime of “murder”.

Governments are instituted among men and derive their powers from the governed, who delegate some of their right to retaliatory force to that institution so that individual rights can be protected, and everyone can be assured that their own rights will be protected if they, or their friends or family, are ever accused of a crime. Government isn’t there just to do justice, but to show justice, and only justice, being done. It is there to assure everyone in society that force is only being used to protect individual rights. But, this raises a new problem. How to ensure that those acting on behalf of government –the police, the military, the courts, and the legislature- do not themselves become force-initiators? If the fundamental powers of government are written down in a document, then it is clear what actions government officials can take, and the exact procedures for taking such actions. Any power not granted by this written document is not a power delegated to the government by “the people”. This is the purpose of a written constitution. In other words, a written constitution can be defined as the fundamental charter delegating the peoples right to the retaliatory use of physical force to a central authority. Only the powers granted to government agents in a written constitution are authorized.

The difference between these two types of provisions found in the US Constitution suggests that they have different origins and should be interpreted in accordance with different methodologies. As was already stated, the “structural” provisions of the Constitution represent decisions at the time the particular document was adopted. They represent the political and social circumstances at the time of ratification, and might be significantly different if circumstances had been otherwise. The “declaratory” provisions tend to be more “abstract”, “timeless”, or “universal”. For instance, a right to freedom of speech and the press is seen as essential to all human beings everywhere, and under all circumstances, while the creation of an upper house of the federal legislature whose members are chosen by individual state legislatures (the Senate) is more a matter of social, economic, and political circumstances at the time of adoption. In some other nation, with some other set of historical circumstances, a unicameral legislature might make more sense. The structural provisions represent the compromises that made the union possible. The structural provisions have a role to play in ensuring rights are protected via such things as separation of powers and checks and balances, but they presuppose the rights that they protect.

Given what has been said about the strong role of historical, political, and social context at the time they were ratified, the structural provisions of the US Constitution should be interpreted in accordance with that historical, political, and social context. In other words, the structural provisions of the Constitution should be interpreted in accordance with original meaning, as described by Justice Antonin Scalia and others.[8] The reasoning here is fairly simple: (1) A constitution is the fundamental charter delegating the people’s right to the retaliatory use of physical force to a central authority, and only the powers granted to government agents in the written constitution are authorized; (2) “the people” currently living may not have ratified the constitution, but they are free via its amendment process to alter it at any time; (3) since the currently living have chosen not to amend the enacted constitution, they must still prefer its original terms. When judges interpret these structural provisions of the Constitution, they should therefore look to original meaning on the assumption that it is what the current generation of the body politic prefers. Since most of these provisions have to do with the powers and structure of government, it would undermine the idea of “the consent of the governed” for judges to reinterpret, for instance, how a bill becomes a law. It would abrogate the consent of the governed if the courts suddenly decided that “times had changed”, and only a majority of Senators had to vote for a bill that was signed into “law” by the President, and by-passed the requirement that a majority of the House of Representatives also vote in favor.

Using “original meaning” makes no sense with regard to the “declaratory” provisions of a constitution because these provisions describe universal individual rights, and the protection of rights is the very purpose of government, and a constitution, in the first place. Individual rights are conceptually and logically more fundamental than any written constitution, and form the underlying moral foundation for a written constitution. The source of rights is not divine law, and it is not Congressional law. As discussed, rights are moral principles defining and sanctioning an individual’s freedom of action in a social context. They ensure that the individual is free to live in society. People have freewill so, they can choose not to respect individual rights. However, when the majority of a society fails to respect rights, it will disintegrate. Only a society that respects rights to life, liberty, and property can remain functional long-term, because it is the only society that leaves people free to think and act on their own best judgment in the maintenance of their individual lives.

[1] See The Creation of the American Republic, 1776-1787, Gordon S. Wood, Chapter XII, “The Worthy Against the Licentious”, Section 1, “The Federalist Revolution”: “Not only should the national government have a ‘positive and complete authority in all cases where uniform measures are necessary,’ as in finance, commerce, and foreign policy, but it should have ‘a negative, in all cases whatsoever, in the Legislative acts of the States, as the King of Great Britain heretofore had.’”

[2] See The Creation of the American Republic, 1776-1787, Gordon S. Wood, Chapter XIII, “The Federalist Persuasion”, Section 7, “The Redefinition of Bicameralism”: ”With the ‘Connecticut compromise,’ which provided for two senators from each state, the Federalists found a justification for the upper house that they had not anticipated. ‘The people will be represented in one house, the state legislatures in the other,’…The Senate now became a means of restraining ‘the large states from having improper advantages over the small ones.’”

[3] Hamilton also appears to make this “structural” versus “declaratory” distinction in the Federalist Papers: “Independent of those, which relate to the structure of the government, we find the following: Article I. section 3. clause 7. “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Section 9.” http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html

[4] The Meaning of the American Revolution, Dan Lacy, Chapter 1, “The Eighteenth-Century World”: “The general body of thought we call Newtonian was most effectively applied to social issues by another Englishman, John Locke (1632-1704)…they dominated political thought for a century to come and provided the philosophical basis for the American Revolution.”

[5] See The Creation of the American Republic, 1776-1787, Gordon S. Wood, Chapter VII, “Law and Contracts”, Section 2, “The Contract of Rulers and Ruled”.

[6] James Madison, The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 5. 6/26/2015. http://oll.libertyfund.org/titles/1937#Madison_1356-05_877: “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

[7] James Madison, The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 5. 6/26/2015. http://oll.libertyfund.org/titles/1937#Madison_1356-05_898: “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may [385] be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. [See above footnote for this clause.]”

[8] Section 70, “The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted”. In: Scalia, A. and Garner, B. (2010) Reading Law: The Interpretation of Legal Texts, “Preface”. St. Paul: Thompson/West Publishing.

I Just Realized There is No Authority Under The Constitution for the Feds to Impose a 21-day Quarantine on Persons From Africa

In a previous blog post, I wrote that the President and the Federal government should impose a 21-day quarantine on persons entering the country from areas of Africa stricken with ebola. I now no longer think the Federal government has the power to do this under the Constitution. In fact, there is no Constitutional authority for the Federal government to restrict entry into the United States at all.

The Constitution is a charter of enumerated powers for the Federal Government. It lists what powers are expressly carved out of state sovereignty( http://en.wikipedia.org/wiki/Enumerated_powers ) If it does not list a power as belonging to the Federal government, then such power is reserved for the states. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution)

Article I, Section 8 lays out Congress’ powers, and it says nothing about quarantine. In fact, it appears to give the Federal government no power to regulate entry into the country at all, except for the purposes of imposing duties (Art. I, Sec. 8-1) It also says Congress can make uniform laws of naturalization (Art. I, Sec. 8-4), but that is just how people become citizens -not whether they can enter the country. That means the Federal government must be relying on the “catch-all” of Art. I, Sec. 8-3, (“To regulate Commerce with foreign Nations…”), but I fail to see how people entering the country is “commerce” under original meaning. It now appears to me that Congress has no power to restrict entry by people into the country at all -assuming we are going to actually take the Constitution seriously, which I do.

I did some further research online, and discovered this article: http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html It basically seems to say that the courts have found an “inherent power” in the Constitution that allows the Federal government to restrict entry into the country. From the stand-point of original meaning, this seems as problematic as the “penumbras and emanations” that supposedly give rise to a right to privacy in the Constitution (http://en.wikipedia.org/wiki/Griswold_v._Connecticut). I don’t see how Scalia, Thomas, Bork, or other originalist scholars could look at themselves in the mirror in the morning and claim some sort of unenumerated “inherent power” of the Federal government to restrict entry into the country.

Does this mean that quarantine cannot be imposed? I think it must occur at the state level. Each state government must establish its own quarantine laws, consistent with the Fourteenth Amendment’s due process clause.(http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution) As long as some sort of hearing with objective rules of evidence and sufficient proof of a threat to others occurs, then this is probably sufficient. The additional implication of my new understanding of the Constitution, which I won’t get into too much here, is that each state would appear to have the power to set its own rules for entry into that state by immigrants from other countries. This might not be the result that originalists like Scalia would like, but it is what the Constitution seems to require under original meaning.