Let’s Create Better Suburban Representation On The DART Board

Getting on the buses and trains for the Dallas Area Rapid Transit system is always an ordeal. There is always that sense of dread as to what sort of crazy person you’re going to run into today. Will there be a bum sleeping off his latest heroin/fentanyl fix lying at your feet? (True story.) Going to get threatened by the local “diversity”? (Also true story.) What if there was a better way?

The City of Plano and several other suburban cities around Dallas are currently negotiating changes to the Dallas Area Rapid Transit system with the DART board. DART was created in 1983, and replaced the Dallas Transit System. DART includes within its service area more than just the City of Dallas. Several suburban cities are covered under DART service, and, as part of this coverage, sales taxes are imposed on the sale of goods and services to cover the costs of DART. (Fees are charged to riders, but the sales taxes provide the bulk of the money for DART.)

I wanted to write a little on this topic because I think it is assumed that anyone in favor of capitalism must be against the use of buses and trains in cities. I think it is a mistake to assume this. In an ideal world, I would very much prefer to use buses and trains. I would generally prefer to live in a place where I did not need to own a car to get around. (I don’t want to get into all the reasons I don’t think this is an ideal world right now, as it would be a distraction concerning my overall point. Let’s just say it relates to the people who tend to be on the buses and trains, and their behavior. It’s also the fact that our cities, especially Dallas, are set up in such a manner that being carless is not a good option.)

In a better culture, with better laws, that was closer to pure capitalism, cities would be private entities. Services like roads for cars, sidewalks for pedestrians and bikers, and trains and buses would all be owned by a private corporation. This corporation would replace all functions of city government, other than the police and perhaps municipal courts. It’s also possible that some services currently provided by a single city government would be provided by multiple corporations. But, I suspect it would make the most economic sense to put most of those services into one entity that provides a complete “package” of services in the area.

People would then “vote with their feet”, on where to live. They’d choose cities with the bundle of services and infrastructure that best served their needs and lifestyles. People who preferred more car-centric cities could live in those cities. People who prefer to use buses, trains, bikes, and walking, could live in those cities. Cities would also set the terms of who could live there, and under what conditions. It would probably become common to require criminal background checks to ensure safety in a city. People with criminal records would be barred from living in certain areas, or even from living in the city at all. Cities would set the terms on which roads, sidewalks, and other city assets could be used on a wide variety of topics. For instance, fully privatized cities could set the terms on whether and how firearms could be carried on private roads, private parks, and private sidewalks. Cities would set the terms on what sorts of gatherings and speech could be engaged in, as it is all private property. People who prefer cities that allow them to carry firearms or to engage in more or less speech on sidewalks and roads could move to the cities that offer more or less of that. The terms of use for things like roads, sidewalks, busses, and trains could also contain a requirement that individuals are subject to “stop and frisk” and other crime control measures, thereby reducing criminality. (People who do not like it are free to move to other cities that don’t have such requirements. No one is forced to pay for cities they don’t like.)

The private city would charge fees for its services. For instance, given advances in technology, city roads would likely be electronically tolled now, with drivers being charged some fee for every mile driven on those roads. (In the past, before electronic toll tags became so easy to implement, this might have been some other system, such as receiving a sticker or plate to put on your car that shows you paid the monthly user fee, and then private security or cops would stop and evict/fine anyone driving on the road without the proper sticker/plate.) Bicycle lanes and even pedestrian pathways might be tolled, or portions of them tolled, too. For instance,  a particularly scenic walkway might be tolled with an entry fee, and bicycle paths might be patrolled by security/cops, who require you to have a displayed sticker or small plate, or a QR code, on your bike. (Those who don’t are evicted as trespassers, and/or fined for trespassing.) Rules regarding the use of bike paths, roads, and pedestrian walkways would all be set by the property owner(s). No longer would homeless people and mentally ill people be able to just camp out on sidewalks or roadsides, as this would be trespassing. Likely some portion of the roads, sidewalks, and bike paths would also be paid by local businesses. For instance, the entity that owns a road or sidewalk might charge a business a fee to get access to the road or sidewalk in front of it. Without paying the fee, the entity might block off the road or sidewalk such that access to the business is impossible. (They could erect a large wall, or some other such thing preventing cars and pedestrians from going from the road to the business or vice-versa.) Other methods/business models are possible when it comes to funding. (For instance, advertising billboards might be used on some roads by the owner of the road to defer costs.)

How do we get from where we are today, with city governments delivering services like roads, to a completely privatized city, where the only thing city government manages are the police and local courts? Such a privatization could take different forms. I think it would require some sort of transfer of the ownership of things like roads, sidewalks, bike lanes, and other city land/property to a corporation. Shares in the corporation would then be distributed to the local property owners and taxpayers. Perhaps everyone owning property in the area gets a number of shares in the corporation proportional to the amount of property they own in the city limits. I believe cities are currently funded mostly through sales taxes and property taxes, so these taxpayers should get shares in the corporation, but the exact details of the privatization can be worked out at some future point when our society is actually ready to do so. The principle of the privatization, and who should own city infrastructure, would be based on the idea that the current taxpayers are the true owners of city property. These taxpayers should receive ownership interests in the city in proportion to the amount of taxes they pay.

Until city infrastructure is truly privatized, we should seek to mirror the private, free market model by giving a greater say to those who are actually paying the money to support the system. In the case of DART, that means giving the people who pay the sales taxes a say in how DART is run. People who pay more sales taxes should have a greater say when it comes to DART.

The City of Dallas contributed about half the sales taxes for DART. Up until recently, it had more than 50% of the board members for the entity that controls DART. This was clearly unfair, but apparently Dallas has agreed to give up more seats to other cities to keep them from withdrawing from DART. This is fairer, and closer to a private system where ownership is tied to capital contribution.

I would propose that this be taken a step further. The State Legislature should pass a law that creates a new “charter” or “constitution” for DART that directly ties membership on the entity that controls DART to how much sales tax revenue the city contributes. It should probably be something along the lines of: each city within the DART service area gets one member on the DART Board. A city then gets additional members on the DART Board based on their relative contribution to funding DART through sales taxes. For instance, Dallas contributes roughly half, so it gets enough additional members to give it roughly 50% of the Board members. Every other city gets additional members on the Board to reflect their relative contributions. If a City’s contribution to DART changes over a period of time, then it gets fewer or more Board members. This can all be enforced in court, so a city can ensure it is receiving its fair share of Board members. 

Some cursory research indicates that DART’s enabling legislation is found at Chapter 452 of the Texas Transportation Code, so this should be modified to put this into effect. The current DART Board only has 15 members. The Board would probably need to be expanded to ensure each city in DART gets at least one member, and to ensure proper proportional representation based on amount of sales tax contributed. I also believe that members to the DART Board are currently appointed by each city’s council. Another possible reform to consider would be to make the DART Board members elective at the city level, so that members of the public choose their DART Board representatives. There might be downsides to making the positions elective, however. Local elections usually draw very few voters, so it is easy for local interest groups to round up a number of voters, take them to the polls, and influence the outcome of the election. It might be better to leave the system as an appointed system, with DART Board members chosen by the local city council, which has the knowledge and resources to pick good Board members. Alternatively, perhaps one of a city’s DART Board members is elected, and the rest are appointed by the city’s council. This gives some direct representation by the city’s voters. So, for instance, if the City of Dallas had ten members on the DART Board, one of those is elected by the voters, and the other nine are appointed by the Dallas City Council.

Unfortunately, a completely privatized City of Dallas and local suburbs is not possible under the current system of governmental interference in the free market. Until pure capitalism is established, the State Legislature should do its best to ensure that local taxpayers who pay for DART are in control of the Board, and are able to control the system’s future growth and progress.

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

What If Nicole Brown Had A “No Interracial Dating” Policy?

Interracial couples represented as many as 17.9% of substantiated events, and these couples were 1.5 times more likely to mutually assault each other than ethnic minority couples, and twice as likely as White couples to experience a mutual assault.” (Martin BA, Cui M, Ueno K, Fincham FD. Intimate Partner Violence in Interracial and Monoracial Couples. Fam Relat. 2013 Feb 1;61(1):202-211. doi: 10.1111/j.1741-3729.2012.00747.x. Epub 2013 Jan 22. PMID: 23554541; PMCID: PMC3611980.,  https://pmc.ncbi.nlm.nih.gov/articles/PMC3611980/ )

The new Netflix documentary about the Nicole Brown and Ron Goldman murders is worth a watch. It went through the investigation and trial in a way that made sense, and even made sense of the jury verdict, even if you don’t agree with it. (Which I don’t.)

I want to look at a particularly telling scene in the video. It was an interview by someone in Nicole Brown’s family. The interviewee talked about when Nicole first started dating the person that she would eventually marry, divorce, and later be murdered by. The interviewee said that Nicole told her mother over the phone that she was dating a black man, apparently checking to see if that was going to be a problem with her family. Her mother is reported to have said something to the effect of: “That’s okay.”

Her mom would clearly get the “I’m not racist” seal of approval from the majority of people living in our society since the 1960’s. (Whatever “racist” means, which I’m not sure at this point.)

A few days later, I was driving in my car, thinking about the documentary when a thought occurred to me that was completely novel. I am a product of the mainstream public education system in the United States, and I’ve lived in “respectable” middle class culture here my whole life, so I tend to have a lot of biases and unchecked premises based in that culture, even though I am well into middle age. In other words, I’m just as capable of having “blind spots” in my thinking, thanks to left-wing and egalitarian brainwashing, mostly from the public schools. Anyway, my new thought was this:

What if Nicole’s mother had responded differently when Nicole told her she was dating a black man? What if Nicole’s mom had responded more like someone from 1940’s Alabama than someone from 1980’s Los Angeles?

What if Nicole’s mom had said: “If you date a black man, you’re cut off and disowned. We’ll never speak to you again.

Her mom and dad would have been called “racist” if it got out. There’s also no guarantee Nicole would have listened to them, although it clearly mattered to her, since she “tested the waters” with her parents by letting them know in advance over the phone.

If Nicole had listened to them in this hypothetical case, she probably wouldn’t have died. (Most likely some other white woman would have died, since there are plenty today that would marry a rich, famous football player. I’ll never understand the stupid obsession with football and sports.)

I can hear it now: “There are plenty of white women that get murdered by their white husbands. You’re being ‘racist’. Blah, blah, blah.”

Those people might have a point, except there are studies showing that intimate partner violence is higher amongst interracial couples. We can opine about the causes of this. I’m sure a leftist will say it’s all a legacy of slavery, and really white people’s fault that Nicole’s ex-husband nearly cut her head off. From a personal standpoint, of who you should date, it doesn’t really matter what the reason is or whose “fault” it is that the statistics show what they show. What matters in the dating world today is that one should at least be cognizant of the statistics when thinking about dating interracially. One should at least consider the dangers.

I’m sure someone will also say: “Logical fallacy! Fallacy of division! I’m going to date them, and get to know them, and then, if it turns out that they are dangerous, I’ll just stop dating them, you racist.”

Except, at that point you’re in a relationship with that person, and when you go to break it off with them, they might view you as “theirs”, just like Nicole’s ex-husband viewed her as “his”, and he then killed her in an obsessive rage of jealousy. (Such was the motive theorized by the Netflix documentary.)

Also, keep in mind, it doesn’t matter to me what you do in the end. Virtue-signaling people who do things on the basis of being “progressive” and “open minded” deserve their leftist ideology, I think.

Privatize Public Property To Help Stop Fires in Los Angeles

The fires of January 2025 in Los Angeles have been historic. The scope of destruction is like nothing I have ever seen from fire in my lifetime. Eighty to one hundred mile per hour winds turned the area into something that looked like an apocalyptic hellscape. A combination of man-made and natural phenomena were the cause of the fires.

A recent Wall Street Journal article identifies one factor that made the fires worse than they otherwise would have been. State and Federal land near people’s houses often remained unmanaged and uncleared of brush and other vegetation that created more fuel for the massive fires:

Barry Josephson enjoyed a peaceful life in his hilltop home in the Pacific Palisades, save for one constant worry: the highly flammable brush that clogged the surrounding government-owned land.” (“How L.A. Bureaucracy Made It Harder to Clear Flammable Brush: A mishmash of government agencies failed to keep public lands safe from deadly wildfires, residents say”, The Wall Street Journal, by Jim Carlton, Mark Maremont and Dan Frosch Jan. 18, 2025 5:30 am ET; https://www.wsj.com/us-news/climate-environment/how-l-a-bureaucracy-made-it-harder-to-clear-flammable-brush-683f953e?st=MGTcv2&reflink=desktopwebshare_permalink)

Much of the native vegetation in Southern California is prone to fire because it has evolved to use fire as a means of reproducing itself. The build-up of such vegetation is therefore a build-up of fuel for fire. The more there is of it, the worse the resulting fire. A landowner who did not clear his property of vegetation would be no different than a landowner who stored up kerosene or some other flammable substance on his property over time.

The Wall Street Journal documents how the lack of private property rights exacerbated the fires in Los Angeles, which probably led to the unnecessary loss of life and property.

Why did State and Federal land managers fail to clear out the excess vegetation on public land? In essence, the Wall Street Journal article says that different bureaucracies all had input into how public land was managed:

In the Palisades, the city and county of Los Angeles, the state parks department, the California Coastal Commission, and the National Park Service all have a say in what happens on land surrounding residential areas.” (Id.)

The result was that basic responsibilities of landownership were often not taken because everyone, and no one, owned the public land:

The delays were caused by a slow-moving tangle of government agencies that own or regulate Los Angeles’s undeveloped land and are tasked with mitigating wildfire risks, according to a review of public records and interviews by The Wall Street Journal.” (Id.)

Nearby private landowners often had to beg government agencies to do something about the excessive growth of public land. When nothing was done, private landowners would sometimes undertake to clear public land, despite the risk of being fined or arrested for doing so:

Impatient with government bureaucracy, including a $150 fee for permission to remove brush from state parkland, some of Josephson’s neighbors cleared it on their own.” (Id.)

In other words, not only was the government failing to clear public lands of fuel for wildfires, but it often prohibited neighboring private landowners from doing so. (Such is the insanity of “Progressive”, Democratic California government.)

By breaking the law, and clearing out this land of excess vegetation, they may have saved portions of Pacific Palisades in the process:

They might have saved some of their homes. Of 81 houses in the vicinity, Josephson said 54 are still standing amid the wreckage of this month’s Palisades fire, including his. It is particularly remarkable because investigators believe the blaze could have started a few hundred feet away, around a popular hiking destination known as Skull Rock.” (Id.)

The argument is often made that government is needed to solve “negative externalities” like air or water pollution. But, this demonstrates that the only entity creating “negative externalities” in Pacific Palisades was the State of California and the Federal Government. Their failure to engage in basic vegetation management exacerbated this natural disaster.

But why would government managers of public lands fail to manage public property like this? The answer lies in the nature of property rights.

In her 1965 article, “The Cashing In: The Student ‘Rebellion’”, originally found in “The Objectivist Newsletter”, Ayn Rand spoke about the use of public university buildings and facilities by “student rebels” to undercut freedom of speech. Students at Berkley in the 1960’s began shouting obscenities indoors, and “occupying” university buildings, claiming that they had the right to “freedom of movement” and “freedom of speech” on the University.

Ayn Rand noted that the waters were muddied by the fact that the universities were taxpayer-funded. In a sense, everyone, and no one, owns the public universities. Therefore, there are conflicting claims between those who want to learn in their classrooms, and those who claim the right to, for instance, obstruct the entrance to the classroom with their bodies as part of a protest. When there is a taxpayer-funded “public space”, such as a university, road, or sidewalk, such clashes and conflicting claims will be inevitable. It is only on the basis of private property rights that human beings can live together without such conflict:

It is only on the basis of property rights that the sphere and application of individual rights can be defined in any given social situation. Without property rights, there is no way to solve or to avoid a hopeless chaos of clashing views, interests, demands, desires, and whims.” (“The Cashing-In: The Student ‘Rebellion,’”; Capitalism: The Unknown Ideal, Ayn Rand, Kindle Edition, Pg. 293 of 366; http://aynrandlexicon.com/lexicon/property_rights.html )

This conflict on public university campuses exists to this very day. In the Spring of 2024, we saw supporters of terrorists in the Middle East “occupy” campuses at universities such as UCLA, and begin to ethnically cleanse the campus of “Zionists”, i.e., Jewish students:

“…protesters created a ‘Jew Exclusion Zone’ where in order to pass ‘a person had to make a statement pledging their allegiance to the activists’ view.’ Those who complied with the protesters’ view were issued wristbands to allow them to pass through, the complaint says, which effectively barred Jewish students who supported Israel and denied them access to the heart of campus.” (https://www.nbcnews.com/news/us-news/judge-rules-jewish-students-says-ucla-cant-allow-barred-accessing-camp-rcna166529)

Regardless of what one thinks of the goals, motives, and desires of the “pro-Palestine protestors” on the UCLA campus in 2024, a satisfactory resolution of the issue was impossible due to the nature of so-called “public property”. Everyone is forced to pay for UCLA through their taxes, including the Jewish students and the pro-Palestine students. UCLA will either have to curtail the freedom of the pro-Palestine protestors to associate with who they want, or it will have to curtail the freedom of Jewish students to move about the campus freely without making “loyalty oaths” to Hamas.  (My support of people’s freedom to verbally voice support for Hamas and dissociate from Jewish people should not be construed as my agreement with that viewpoint. I only support their right to freedom of association.)

As Ayn Rand noted in 1965, it is only on the basis of property rights that individual rights can be defined in any given social situation. The elimination of property rights eliminates the ability of people to take the actions necessary to maintain their lives. Just as the creation of a “public university” that is “public property” creates intractable social conflicts between students with differing religious and cultural viewpoints, so too does the creation of “public parks” and “public land” create incurable conflicts.

State and Federal parkland near homes and buildings was often not cleared because everyone, and no one, owned that property. Homeowners were often not permitted to clear brush, and no one at the governmental entities controlling these parks had any incentive or authority to do so.

If this parkland had been owned by private individuals, then they would have cleared the brush themselves. The owner would not want his own land to burn, and even if he didn’t care, he would have to fear lawsuits from those with adjoining land that could be damaged by keeping his property in a dangerous condition. Even if the adjoining landowner had abandoned the property, nearby homeowners could have obtained injunctive relief to abate the fire nuisance, or just done it themselves. (Since they would not be damaging the property, they would not have to fear a damages award in trespass, and if the property is abandoned by its owner, then it is subject to adverse possession law in which the neighboring landowner acquires ownership by improving it.)

Moving forward, what should be part of the solution to the problem of improperly managed public lands in California? They should be sold to the highest bidder, with the new owner(s) having full rights of ownership over the property. The new landowners would have the right to develop or do with the land as they will, only subject to the same general laws as other landowners, such as the law of nuisance.

Private owners of this formerly public land would have the right to develop it, or maintain it as parkland. They would also have the correspondent obligations to maintain it in a manner that does not facilitate wildfires. If a fire starts on this land as a result of the negligent failure to manage vegetation, then the owners would be liable in a lawsuit. (Preemptively, the owners of the nearby structures could seek injunctive relief against landowners who create hazardous fire conditions on their land through the common law of nuisance.)

There are other political and cultural problems that California would have to address to mitigate or reduce such fires in the future. This is just one piece of the puzzle. Privatization of land would at least eliminate the lack of accountability that comes from “public property”.

“The Thin Blue Line” on Netflix

The Thin Blue Line” on Netflix is an old documentary about an even older murder case in Dallas County, Texas. In the late 1970’s Randall Dale Adams was convicted of murdering Dallas police officer Robert Wood. It was asserted by the prosecution that Adams had shot Officer Wood after being pulled over by the later.

In reality, there was compelling evidence that another person, David Ray Harris had shot Officer Wood. This included the fact that Harris had been bragging to other people that he had shot Officer Wood. Harris later claimed at trial that he hadn’t shot Officer Wood, and had only been bragging to his friends to seem like a bigshot cop-killer. Additionally, although the state does not have to show motive for murder, Harris had the only logical motive to kill Officer Wood. Harris was driving in a stolen car when it was pulled over by Officer Wood. Randal Dale Adams would have had no reason to kill the police officer, and likely wouldn’t have even known that the car was stolen. Randal Dale Adams claimed that he was not even in the car at the time of the shooting, because he had been dropped off by David Ray Harris earlier that night.

So why was the State so intent on prosecuting Randal Dale Adams, rather than the more obvious suspect, David Ray Harris? Randal Dale Adams was in his mid-twenties at the time of the murder, while David Ray Harris was only 16, and not eligible for the death penalty. It’s likely that the Dallas Police Department, the Dallas County District Attorney, and the State of Texas wanted to put someone to death for the murder of a cop, even if it was the wrong person.

Randal Dale Adams was convicted and sentenced to death. His appeal to the Texas Court of Criminal Appeals was unsuccessful in overturning his conviction or getting him a new trial.  His execution was scheduled for May 8, 1979. Three days before that, the US Supreme Court reversed the conviction on a procedural matter unrelated to the factual finding of guilt. This would require a new trial on guilt/innocence before Mr. Adams could be executed. In order to avoid a new trial, which would likely have brought to light new evidence of innocence, the Dallas County District Attorney was able to secure the commutation of his death sentence to life in prison. This obviated the need for a new trial on the procedural irregularity, since the US Supreme Court opinion only applied to death penalty cases. As a result, Randal Dale Adams then spent more than a decade in prison until “The Thin Blue Line” came out.

While conducting interviews of David Ray Harris, who was on death row himself at that point, for the murder of another person, the producers of the documentary recorded David Ray Harris giving what almost amounted to a confession, stating that Randal Dale Adams did not kill Officer Wood.

Additionally, the producers of the documentary conducted interviews of the witnesses who had claimed to see Randal Dale Adams behind the wheel of the car before Officer Wood was shot. They had been driving by on the road when Officer Wood had first pulled over the car the night of the murder. It turned out that the witnesses were not very credible, had reasons to lie, or just flat-out stated to the documentary producers they didn’t actually see Randal Dale Adams. One female witness, Emily Miller, seemed like total scum. She was either lying because she wanted to collect reward money, or she simply convinced herself that Adams was the man she had seen, even though she had not been able to pick him out of a lineup earlier. (I would think this would have been brought up by the Defendant’s attorney on cross examination?) It also turned out that Emily Miller had her own legal problems. Her daughter was being investigated for a robbery, so she might have been trying to curry favor with the DA and Police for the sake of her daughter. (She had also recently been fired from her job for stealing from the cash register.) Additionally, on a motion for a new trial, after the first trial, the Dallas County District Attorney engaged in prosecutorial misconduct and withheld evidence that could have exonerated Randal Dale Adams, ensuring that he went to death row.

As a result of the newly unearthed evidence and the negative publicity on the DA and Dallas Police, Randal Dale Adams got a new trial in 1989. The Dallas County DA then dismissed the case, and Mr. Adams was a free man after 12 years  of incarceration and nearly being executed by the State of Texas. Try to imagine what it would be like to be an innocent person, convicted of a crime you didn’t commit, waiting on death row to be killed by the State. The police didn’t believe you, the DA didn’t believe, you, the judge didn’t believe you, and the jury didn’t believe you. For all intents and purposes, the human race is against you, and wants to see you dead. In reality, you didn’t do anything to deserve any of it, and you will die soon. The situation is too horrible to contemplate.

All around, it was a total miscarriage of justice. Why would the Dallas County District Attorney and the Dallas Police Department want to convict the wrong man? Most likely because they couldn’t give David Ray Harris the death penalty because he was only 16. (Although I wondered if someone in a position of power was protecting him for some reason?) In their minds, the public needed to see someone being executed for the murder of a police officer, either because it would satisfy the public’s sense of justice, or because it would deter others from shooting a cop. Whether the Defendant actually did it was a secondary consideration for them. As a result, Randal Dale Adams was three days from his death sentence being carried out, and only avoided that because of a procedural irregularity the US Supreme Court found.

The Police, the jury, the DA, the judge, the Court of Criminal Appeals, and the public all seemed to be okay with executing Randal Dale Adams, who, in my mind was likely innocent. Unlike 99% of all other exonerations I’ve read about, I think Randal Dale Adams probably didn’t do it. Usually, I think when people who spent time in prison are let go because of newly discovered evidence, it’s not because they’re actually innocent. It’s simply a case of new evidence coming to light that creates some reasonable doubt as to their guilt, and it’s better to let them go than take a chance keeping them in prison for a crime they possibly did not commit.  I agree that it is better to let probably guilty, but possibly innocent, people go since I don’t want to see innocent people in jail or executed. Guilt always needs to be beyond a reasonable doubt, and if anything creates reasonable doubt, you’ve got to let them go.

But, the fact that everyone failed, or willfully chose to hide the truth, in the case of Randal Dale Adams has been the last straw for me. If there were a hell, the prosecutor in his case belongs there. I’ve changed my mind about the death penalty. When I was younger, I was willing to take a chance with the possibility of executing an innocent person. Life has taught me that about 50% of the police, judges, and prosecutors are either incompetent or maliciously negligent in their duties. Additionally, juries in many counties in Texas have the attitude of: “Don’t bother with presenting the evidence, just tell me where to write ‘guilty’ on the jury charge.” As an advocate of capitalism and the free market, I recognize that government is highly inefficient and often corrupt. I think death can be a just punishment, as it stops criminals from committing more crimes permanently, but many government officials are not sufficiently competent or virtuous to ensure that the innocent are not executed. There are people who definitely deserve death, but not at the cost of innocent lives.

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. “ (5th 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/ )

 

The Basis of Punishment of Criminals When Reading Murray Rothbard and Ayn Rand

The Basis of Punishment of Criminals, Based On My Reading of Ayn Rand’s Theory of Rights and Government

As far as I can tell, Ayn Rand did not discuss the details of government much beyond saying that it would have police, military and courts:

The only proper purpose of a government is to protect man’s rights, which means: to protect him from physical violence. A proper government is only a policeman, acting as an agent of man’s self-defense, and, as such, may resort to force only against those who start the use of force. The only proper functions of a government are: the police, to protect you from criminals; the army, to protect you from foreign invaders; and the courts, to protect your property and contracts from breach or fraud by others, to settle disputes by rational rules, according to objective law.” (Atlas Shrugged, Ayn Rand, emphasis added, http://aynrandlexicon.com/lexicon/government.html)

Since Ayn Rand said that there would be police, and did not give any other definition of what “police” are, we can assume that she generally accepted the role police play in contemporary society today, so long as that role was delimited to protecting rights.

The way police function today is by catching criminals, taking them to court for an adjudication of guilt or innocence, and then incarcerating those found guilty for a period of time. (Leaving aside certain petty crimes that only involve a fine, and assuming the death penalty does not exist.) Presumably Rand thought arrest and incarceration was appropriate, but how exactly does incarceration protect rights, and whose rights does it protect?

It does not appear that Ayn Rand ever explicitly discusses how it is that the police and the incarceration process protects individual rights. She says that the purpose of government is based in the right to self-defense:

The necessary consequence of man’s right to life is his right to self-defense. In a civilized society, force may be used only in retaliation and only against those who initiate its use. All the reasons which make the initiation of physical force an evil, make the retaliatory use of physical force a moral imperative.” (“The Nature of Government”, The Virtue of Selfishness, Ayn Rand, emphasis added.)

I can see how an individual can prevent himself from being murdered by using self-defense. If the victim is armed, he can try to outshoot the person trying to murder him, thereby saving his life. If the victim is a quicker draw than the person attacking him, or just a better shot, then he can stop the attacker with a bullet.  But, in the case of a person already murdered, he cannot act in self-defense, and the state cannot defend him, because he is already dead. How is the state prosecuting the murderer, after the fact, self-defense? It must be in the sense that every other living person needs to stop the murderer from killing again, and for their own self-defense, rather than the defense of the murder victim, who is beyond help.

Even for lesser crimes, what is the probability that the criminal will re-victimize that particular victim? If a bank robber robs a bank, wouldn’t he be more likely to rob a completely different bank in the future? The bank that was just robbed is more likely to take additional security precautions, so it would be smarter for the criminal to find a new target. Although the government is defending the bank already robbed, it is also protecting other banks that have yet to be robbed.

Also, this still doesn’t explicitly answer the question of exactly how does locking up a person convicted of murder help defend the still living, in the case of a crime like murder? (And, I am just assuming that Ayn Rand would be in favor of incarceration, because I don’t know that she ever explicitly says that this is how criminals should be punished.) I don’t think Ayn Rand explicitly answers the question of “how”, but I think I am able to see logical implications based on her writing. For instance, Ayn Rand said the following:

If a society provided no organized protection against force, it would compel every citizen to go about armed, to turn his home into a fortress, to shoot any strangers approaching his door-or to join a protective gang of citizens who would fight other gangs, formed for the same purpose, and thus bring about the degeneration of that society into the chaos of gang rule, i.e., rule by brute force, into the perpetual tribal warfare of prehistorical savages.“ (“The Nature of Government”, The Virtue of Selfishness, Ayn Rand, emphasis added.)

So, it is “organized protection against force” that is the goal of government. Government is not primarily “organized revenge” or even “organized retaliation”. Government exists for purposes of protection. Only actions by government that protect against force are justified. But, what about the person already murdered? How can he be protected by government? Clearly, the dead cannot be protected, only the currently living. Whatever government does to the murderer is done to protect the currently living, not for the sake of the deceased.

I see only two ways that a government can provide “organized protection against force” in the case of murder, which is generally considered to be the worst crime:

(1) Government establishes a penalty for murder, and that penalty is always imposed, so that everyone is discouraged from committing murder. Government imposes a penalty to protect the currently living from being murdered in the future. The only way that penalty will work is if it is, in fact, imposed whenever a murder is committed. The government is threatening the use of force to protect the currently living. The threat of force by the government is not against any particular individual, but against everyone in society. Another way to look at it is that government promises or declares that anyone who violates individual rights by initiating physical force will be met with force.

(2) Government actually uses force to prohibit future crimes being committed by a specifically identified murderer. Government is actually imposing the force, rather than merely threatening the use of force, to protect the currently living from that particular, identified, murderer.

The first is the “deterrent” or “general deterrence” argument for punishment. The second I’d call the “restraintist” argument for punishment, although I think some legal philosophers might say this is “specific deterrence”.

I should note that I can somewhat see a third basis for how government can provide “organized protection against force”. It would be very understandable that the family and friends of the murdered person would want to enact revenge on the murderer by killing him. I doubt that this feeling is rational, but it is very understandable. It’s also very likely to take place if there is no organized government. By having an organized system of punishment, government can provide friends and family members of the victim with sufficient emotional satisfaction that they might be less inclined to seek revenge. I think this “retributivist” basis might just be a form of “deterrence”, in the sense that it discourages the victim’s friends and family members from seeking revenge against the killer.

Another point to note is that I don’t think the first two, and maybe not even the third, possible bases on which government imposes “organized protection against force”, are necessarily mutually exclusive.

Unfortunately, Rand does not give much in the way of detail about how government, and in particular, the police, will protect individual rights, other than to say that the police represent a delegated and organized use of force in self-defense against criminals. The logical implication seems to be that the police are not just defending the victim, who, in the case of murder, is beyond help, but everyone else in society that could be the criminal’s next victim. A further logical implication is that this organized use of force by police is in the form of incarceration, which serves the purpose of restraining the particular criminal from future crimes, and/or deterring future crime by others.

The Basis of Punishment of Criminals For Murray Rothbard

If my interpretation of the Randian basis for punishment, as lying primarily in “deterrence” and “restraint” is correct, then Murray Rothbard would disagree with Rand. (At the very least, I disagree with Rothbard about the basis of punishment.)

Rothbard explicitly states that retributivism is the basis of punishment of criminals:

It should be evident that our theory of proportional punishment: that people may be punished by losing their rights to the extent that they have invaded the rights of others, is frankly a retributive theory of punishment, a ‘tooth (or two teeth) for a tooth’ theory.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

Rothbard does say that the purpose of using force in retaliation is self-defense:

Many people, when confronted with the libertarian legal system, are concerned with this problem: would somebody be allowed to ‘take the law into his own hands’? Would the victim, or a friend of the victim, be allowed to exact justice personally on the criminal? The answer is, of course, Yes, since all rights of punishment derive from the victim’s right of self-defense.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

But, in many cases, the principle of “an eye for an eye” does not seem to have anything to do with anyone’s defense, whether that be the victim, or other people that the criminal might victimize in the future. The retributivist focuses on the punishment aspect, rather than the defense of others, and this seems true for Rothbard. For instance, he says that a person who has been assaulted should have the right to beat up his attacker in return:

In the question of bodily assault, where restitution does not even apply, we can again employ our criterion of proportionate punishment; so that if A has beaten up B in a certain way, then B has the right to beat up A (or have him beaten up by judicial employees) to rather more than the same extent.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

Although the threat of getting beat up might, to a certain extent, serve a deterrence effect, this is not why Rothbard advocates it. Instead, it is because he thinks the perpetrator of a crime should have the same done to him. (“A tooth for a tooth.”) To me, this seems completely senseless. How does the victim beating the shit out of his attacker, after the fact, help the situation? Also, how would this prevent the victim from being beat up in the future? With incarceration, the attacker is put in jail for a period of time, which better ensures the victim’s safety.

Rothbard does address the “deterrence” viewpoint, and another major modern school of thought, regarding the purpose of incarceration, which is the “rehabilitation” viewpoint. His critique of the “deterrence” viewpoint is that it would involve the use of levels of punishment that most people would regard as inappropriate or unfair. So, for instance, most people would regard shoplifting as a minor crime, and that the punishment should be very light. But, Rothbard says that if shoplifting were legal, then many more people would commit the crime of shoplifting than if the crime of murder were legal. He says this is because more people have “…a far greater built-in inner objection to themselves committing murder than they have to petty shoplifting, and would be far less apt to commit the grosser crime.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

As far as I can tell, Rothbard provides no evidence that people would be more likely to commit shoplifting than murder if the two were legal. This does seem likely to me too, but I have no basis for saying that, other than I like to think that most people are not prone to commit murder. If there were no laws, isn’t it likely that people would kill or steal when they thought it would suit them? Does it even matter what they’d do if there were no laws? If we have a theory of rights based on the fundamental right to life, like Ayn Rand’s philosophy, then doesn’t that philosophical system say that murder must be worse than shoplifting, precisely because the former is an assault on the fundamental basis of rights? So, wouldn’t that be the basis of a system of proportionality, in which murder is punished more harshly than shoplifting? This would only seem to be a problem for someone with a utilitarian philosophical basis, which is what Rothbard is criticizing when he criticizes the deterrence school:

Deterrence was the principle put forth by utilitarianism, as part of its aggressive dismissal of principles of justice and natural law, and the replacement of these allegedly metaphysical principles by hard practicality. The practical goal of punishments was then supposed to be to deter further crime, either by the criminal himself or by other members of society. But this criterion of deterrence implies schemas of punishment which almost everyone would consider grossly unjust.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”, emphasis added.)

Clearly, Ayn Rand is not a utilitarian, but, as already discussed, her views on rights and the nature of government would suggest that “deterrence” is part of the purpose of incarceration of criminals. Incarceration would be for the purpose of protecting the rights of people living in society, as well as the original victim, if he is still alive.

Rothbard also dismisses the “rehabilitation” viewpoint because it would seem to lead to absurd results, like incarcerating someone for shoplifting for longer than a murderer, if it is determined that the murderer has been successfully rehabilitated and will not commit more crimes:

“…in our case of Smith and Jones, suppose that the mass murderer Smith is, according to our board of ‘experts’, rapidly rehabilitated. He is released in three weeks, to the plaudits of the supposedly successful reformers. In the meanwhile, Jones, the fruit-stealer, persists in being incorrigible and clearly un-rehabilitated, at least in the eyes of the expert board. According to the logic of the principle, he must stay incarcerated indefinitely, perhaps for the rest of his life…”(The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

Although I cannot find support in Ayn Rand’s writing for this, I believe “rehabilitation” does play a role in the length of incarceration of someone convicted of a crime, but not quite in the way that I think this term is used by philosophers of law. I think that the possibility that the convict can “rehabilitate” himself, due to the possession of a volitional consciousness means that the length of a prison sentence may be less than the convict’s life. Since people possess volition, even a murderer can change his thought patterns and his actions for the better in the future. I disagree that the government or society can “rehabilitate” a convict, but I think that the convict can “rehabilitate” himself. Lesser crimes, besides murder, are therefore likely to carry less than a life sentence, given the fact of human volition. I think the possibility of self-rehabilitation by the convict is a major factor to consider when weighing the proportionality of the punishment in relation to the crime. The fact of volition must be weighed, as much as possible, against the possibility that a person found guilty of a minor crime might go on to commit more serious crimes in the future, while at the same time, recognizing that the commission of a minor crime might be a “fluke” or a one-time event that would not be repeated by the convict. Additionally, someone found guilty of a murder, who is facing a life sentence, is likely to lie to get out of prison early, so making the determination that he is truly rehabilitated is not going to be easy.

Admittedly, unlike the retributivist system of crime and punishment proposed by Rothbard, determining the extent of the punishment in particular circumstances, along the lines I have proposed, would be more difficult. “An eye for an eye” has the advantage of being easy to implement. If someone is beat up, then they get to beat up their attacker, which makes assessing the punishment easy, albeit ridiculous and irrational.

 

White Collar Crime and Race

On at least two occasions, I’ve heard the following reply to my pointing out that a disproportionate amount of the violent crimes, such as murder, robbery and rape are committed by non-whites in the United States. (In other words,  even though blacks make up about 14 percent of the population, in some years, about half of all murder and non-negligent manslaughter is committed by someone categorized racially as black.)

The retort I’ve heard, at least twice, is: “White people commit more white-collar crimes.

I didn’t consider this to be a particularly great response because: (a) I was only talking about violent crime, so this is dropping the context of the discussion, and (b) I don’t consider “white collar” crime to be a major problem. That’s just money. I do consider people loosing their lives to violence to be a bigger problem.

I had always assumed that this assertion was correct. Now, I am not so sure. Looking at FBI crime statistics broken down by race for 2011, we can see the number of people arrested by race for various crimes. This includes rows for “Forgery and counterfeiting”, “Fraud”, and “Embezzlement”. All three of these I would characterize as “white collar crimes”. For Fraud, the percentage of whites arrested for fraud is 66.5 percent, while the percentage of blacks arrested for fraud is 31.8 percent. The percentage break-downs for forgery and counterfeiting and embezzlement are about the same. Again, since blacks only make up about 14 percent of the population, the percentage of total crime that this racial group “should” be committing is about 14 percent. The fact that it is running around 31 percent, means its about twice as high as what it would be if each racial group was committing the amount of crime “representative” of its portion of the population.  (At least, this is how I see it, but I am not great at math.)

Now, maybe there are studies that define “white collar crime” differently, such that it is limited to a particular subset of fraud and embezzlement, where whites do in fact commit more “white collar crime”. I have a hypothesis on this that I’d like to see tested. I suspect this is more about access than inclination of blacks versus whites to commit such crime. When we think “white collar crime”, we think of people who are in positions of financial, legal, or corporate responsibility at a business. White collar criminals are probably more educated and have worked their way up the corporate ladder sufficiently to be in a position to commit a white collar crime. For instance, an accountant at a corporation is in a position to “cook the books” and embezzle money more easily than, say, a janitor. What racial group are most accountants? They are mostly white, with Asians probably in a close second. In fact, according to this article, fewer than one percent of all CPA’s employed by firms are black. If you gave all people, of all races, the same amount of opportunity to commit “white collar crime”, what would the results be?

I also think it’s entirely possible that a black person who has worked hard enough to become sufficiently educated to be a CPA is actually less likely than a white CPA to commit a crime. I could see the black CPA’s reasoning as follows:

I’ve seen all the criminals and thugs around me as I’ve been growing up. I didn’t work this hard and put up with all those criminals through the inner-city schools to be like them. So, I will always be very honest and law-abiding.”

In other words, the black, educated professional may have more desire to separate himself from the disproportionate levels of violent crime, and, apparently, fraud, forgery, and embezzlement, that are being committed by other black people. This would be an interesting thing to see an honest study about. But, since most academics in the social sciences have a Marxist-mindset, with a left-wing ideological axe to grind, we may never know.

 

 

 

The COVID-19 Crisis, Collectivism, and Capitalism

The military, police, and medical professions often train for emergency situations.  (https://www.psychologytoday.com/us/blog/choke/201005/want-success-under-stress-close-the-gap-between-practice-and-competition)   First responders and military try to create a system of steps that are to be taken in situations that are not likely to occur on a daily basis. It’s widely recognized that high stress is going to make thinking harder, not easier. Success in an emergency situations depends on thinking ahead of time about what steps need to be taken, and then training before the emergency occurs.

I suspect emergency responders train because the human mind needs a set of guiding principles to deal with the overwhelming sensory information that is presented to it. A person often does not have the time to sit down and evaluate each situation individually and determine what the best course of action is. Action is called for, especially in an emergency.

Concepts are a means of categorizing sensory-perceptual data in a systematic manner to improve one’s chances of living a successful and happy life. (How We Know: Epistemology on An Objectivist Foundation”, Binswanger,2014, TOF Publications, pg. 135; see, also, “The Virtue of Selfishness: The Objectivist Ethics”, Rand,Man’s actions and survival require the guidance of conceptual values derived from conceptual knowledge.”)

A “principle” is a sort of aphorism or mental statement, made up of simpler concepts. It describes a particular cause-and-effect relationship one must implement to increase the chances of living. (How We Know: Epistemology on An Objectivist Foundation”, Binswanger,2014, TOF Publications, Pg 306.) For instance, a person might adopt the principle of: “When dealing with others, treat them fairly, and in a win-win manner.” This is a principle guiding how one deals with other people socially and in business. This principle of justice is a recognition that just as you want to live, so too, do most other people want to live. You must provide them with a benefit to keep them dealing with you. It is a recognition of a particular cause -giving positive incentives for other people- that will bring about a particular effect -the benefits of trade.  A boss pays his workers, the cause, in exchange for their labor, an effect, that he wants. A person listens to his friend describe his fantastic new job, and congratulates him, because he wants his friend to offer him positive reinforcement when something good happens in his own life. Husbands don’t cheat on their wives (the cause), because their wives agree to live with them and have sex only with them (the effect).

Problems can arise from the human mind’s need for principles to live in at least two way: (1) Some principles adopted by people are either false, or are false in a particular context; and (2) Not everyone agrees that the purpose of principles is to improve your life and well-being. Dogma is an example of “principles” that are aimed at some purpose other than living. (For instance, a religious instruction that tells people not to eat certain foods, not because of any health reasons, but simply because it is forbidden by some sort of supernatural authority.)

A feature of the human mind is a tendency to “fall to the level of your training” rather than “rise to the occasion” during a national emergency. People are going to tend to take whatever pre-existing ideas they may have about human nature, society, and the good life, and apply them. If they haven’t thought too deeply about the implications of these ideas, then there can be negative consequences.

Political systems and social systems tend to operate on a sort of “inertia”, in which our cultural institutions are based on long-standing ideas and traditions. As a result, our political systems may last longer than the ideas that created them. In the past hundred and fifty years, the ideas that created American culture and institutions have largely been discarded by academics and intellectuals in exchange for other notions. Our institutions and social mores have changed more slowly, because of “cultural inertia”. Our court systems, political institutions, and some social customs, are based in a better era. They exemplify the “pursuit of happiness” expounded by Enlightenment philosophers, like John Locke and Aristotle. Academics have long since rejected those ideas in favor of the collectivism of Marx and the duty of Kant. (See “Explaining Post Modernism: Skepticism and Socialism From Rousseau to Foucault”, Hicks, 2018)

I am not a historian, but what I think happens in a national emergency or social crisis is that the old institutions need adjustment to the current context, but since academics, lawyers, politicians, and other cultural elites don’t really understand or accept the ideas on which those old institutions were formed, they are unable to offer any sort of adjustment or modification of those institutions. All they have available in their conceptual “toolbox” are the newer ideas, which have never been fully implemented, due to the “cultural inertia” I discussed. As a result, during a social crisis, there is a strong possibility of a sudden overthrow of the old institutions in favor of contrary, newer ideas. The contradiction between the new ideas and the old institutions suddenly becomes unsustainable, and there is a quick shift.

The tendency of old institutions to be overthrown in favor of a new system, representing current ideas, during a crisis is not necessarily bad. It depends on what those newer ideas are, and what the new system consists of. It’s possible the new ideas are better than the ideas that formed the basis of the old regime. It is theorized by some historians that the Black Death in Europe, between 1348 and 1350, helped shatter the old Feudal order:

What’s often missing from this story, however, is the wider context and the lasting impact of the Black Death. This is a story not only of unfathomable tragedy, but also of transformation and rebirth. The plague, in combination with a host of other related and overlapping crises, delivered a death blow to Medieval Europe, ushering in a new age — the Renaissance and the rise of so-called agrarian capitalism — and ultimately setting the stage for the Industrial Revolution and the modern world.” (“The Black Death led to the demise of feudalism. Could this pandemic have a similar effect?”, Adam McBride, in April 26, 2020 ed. of “Salon”, emphasis added, online at:  https://www.salon.com/2020/04/26/the-black-death-led-to-the-demise-of-feudalism-could-this-pandemic-have-a-similar-effect/ )

(Note: I do not agree with the proposed political and policy solutions in the last several paragraphs of this article, but I do agree with the historical account of the Black Death as an immediate cause of the end of the Middle Ages.)

The reason the Black Death could be socially and politically transformative, giving rise to the Renaissance, is because there were underlying ideas that had been circulating in the European culture for some time. The Renaissance was a “rebirth” of Ancient Greek ideas:

The argument [amongst medieval scholastics] paralleled the classical one between Plato and the Sophists. Plato believed that Ideas (Forms) had a perfect and independent existence, while the Sophists thought that only particular things existed. In the Middle Ages, those who held that ‘universals’ were real were called ‘realists’; those who declared that they were just names (nomina) were called ‘nominalists’. The argument was (and is) of critical importance to one’s philosophical outlook. The extreme realists attached little importance to individual things and sought through sheer logic or divine revelation to approach the universals. The extreme nominalists, by contrast, perceived only discrete objects and refused to admit the existence of unifying relationships among the infinitude of particulars. The realists tended to ignore the observed world; the nominalists could scarcely comprehend it. Most schoolmen took a middle position on this question. Among the moderates, [Peter] Abelard…held that only particular things have an existence in and of themselves. The universals, however, are more than mere names. They exist as concepts in individual minds -keys to an understanding of the interrelatedness of things…By means of many such concepts, inferred from individual observations, we can make the world (to a degree) comprehensible, manageable, and predictable…Thomas Aquinas, the greatest of the scholastic philosophers, was a moderate realist…Following the lead of…Abelard…Aquinas set a high value on the faculty of reason. By this time the full impact of Aristotle and the new learning from the East had struck the schools and universities of Europe, and Christian dogmas were being challenged by pagan, Muslim, and Jewish logicians…Aquinas adopted Aristotelian logic and turned it to the defense of his faith….Both faith and reason, he argued, were created by God, and it is illogical to hold that God could contradict himself.” (“A Brief History of Western Man”,  3d Ed., Greer, Thomas, 1977 Harcourt Brace Jovanovich, Inc., Chapter 6: “The Flowering of Medieval Culture, Pg. 214-215)

Thomas Aquinas had brought Aristotelian thought back to Europe, in the sense of giving those ideas institutional respectability in the Catholic church. Most cultural and academic elites of that time were in the Church. By adopting Aristotle to fit with Church doctrine, at least for a while, Aquinas lay the groundwork for the Renaissance. He predated the Black Death, with published works between the 1240’s and the 1280’s. ( https://www.britannica.com/topic/Christianity/Aristotle-and-Aquinas )  A reemergence of the ideas of Aristotle took the focus of intellectuals away from a hard, “Platonic realism”, which focused on alleged revelations from another word. Aristotelianism moved European thinking towards greater observation of particulars in the world of our senses, which is essential to scientific and modern thinking.

This history of the Black Death, the reemergence of Aristotelianism in the late Middle Ages, and the Renaissance, suggests a theory concerning how historical change occurs: A crisis can accelerate what is already occurring in a society. Newer ideas that have been circulating in the culture for some time can quickly and drastically transform social and political institutions during a crisis. Those transformations can be for better or worse, depending on the underlying ideas driving the transformation.

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COVID-19 is our current national crisis. People are approaching it with a lifetime of ideas they have gathered up and accepted, either expressly, or by default, because they didn’t examine the ideas around them too closely. What ideas have a significant segment of the American population accepted? What ideas have the majority of academics, journalists, lawyers, and politicians accepted? In a crisis, there is very little time to act. Immediate action is called for. Just like soldiers will “fall to the level of their training” rather than “rise to the occasion” in an emergency, so too will politicians fall to the level of their “training” from college. What did they learn at the universities? For the most part, their professors taught them to embrace collectivism, and to reject individual rights. This collectivism has taken the form of many slogans over the years, and now, the serpent’s egg is hatching.

I’ll start by defining some of my key terms:

(1) What are individual rights?

A ‘right’ is a moral principle defining and sanctioning a man’s freedom of action in a social context.” (The Virtue of Selfishness, “Man’s Rights”, Ayn Rand)

(2) What is the purpose of individual rights?

Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational.” (Atlas Shrugged, Ayn Rand)

(3) What is collectivism?

Collectivism means the subjugation of the individual to a group—whether to a race, class or state does not matter. Collectivism holds that man must be chained to collective action and collective thought for the sake of what is called ‘the common good.’”  (Ayn Rand, “The Only Path to Tomorrow,” Reader’s Digest, Jan, 1944, 8., http://aynrandlexicon.com/lexicon/collectivism.html)

Our society and legal system are a combination of egoism and individual rights on the one hand and collectivism and “the common good” on the other. The former are older ideas that are based in the likes of Aristotle and John Locke, while the later are based in the ideas of Marx, Hegel, and other 18th Century philosophers. (See “Explaining Post Modernism: Skepticism and Socialism From Rousseau to Foucault”, Hicks, 2018; see, also, The Ominous Parallels, Leonard Peikoff.)

The expression: “The road to hell is paved with good intentions” is inaccurate. The road to hell is paved by what one considers to be the good, but is, in fact, the opposite. The road to hell is paved by collectivist intentions. Several commonly held collectivist ideas have resulted in what are logical, albeit unforeseen, consequences of the government’s reaction to the present COVID-19 epidemic. What are some of these collectivist ideas driving the current governmental response to COVID-19?

(1) The Collectivist Idea that “Healthcare Is A Right”

One of the first acts of many state governors in the face of the COVID-19 crisis was to force “non-essential” healthcare workers off the job. Counties and states banned “elective” medical care. https://www.kxan.com/news/texas/dallas-county-enacts-shelter-in-place-effective-sunday-night-to-combat-covid-19-pandemic/

Apparently, politicians thought of doctors and healthcare workers as having “fungible” skill-sets. If they banned “elective” procedures, then they believed this would leave more healthcare “resources” for others. However, just because a doctor can perform a rhinoplasty or a breast-enhancement surgery, doesn’t mean he has sufficient knowledge to treat a person suffering from a viral respiratory illness. A dermatologist can’t perform heart surgery:

“…thousands of health care workers across the nation who have been laid off, furloughed or are working reduced hours as their services are deemed nonessential…The workers range from dentists and general surgeons to medical assistants and nurses, from allergists and dermatologists to primary care physicians and pediatricians.” https://www.usatoday.com/story/news/health/2020/04/02/coronavirus-pandemic-jobs-us-health-care-workers-furloughed-laid-off/5102320002/

People were told by politicians not to be selfish, and forego “elective” medical procedures during the COVID-19 pandemic. Who decides what is an important health care matter and what is merely “elective”? When health care is viewed as a right, it’s not you and your doctor. The government owns your doctor’s life. (And your life.) Politicians and bureaucrats, viewing healthcare as a “right” are essentially saying:

“That spot on your arm? Probably nothing, probably not melanoma. That toothache? Probably nothing probably not a life-threatening tooth abscess. That debilitating knee pain? How selfish of you to want to be out of pain when there are people dying. You think you have a life-threatening peanut allergy, and need to see your allergist? Suck it up, and quit complaining, buttercup.”

What was the consequence of government forbidding “elective medicine”? Doctors and hospitals can no longer make a profit, which means, in the long run, they’ll go out of business and there will be less healthcare, not more:

Government-mandated cutbacks on elective procedures and routine check-ups have forced independent medical practices to temporarily close their doors. The loss of revenue may soon force some practices to furlough staff, and in the worst-case scenarios to go out of business, causing significant access-to-care disruptions once the pandemic subsides.”  https://triblive.com/opinion/dr-lawrence-john-covid-19-could-devastate-medical-practices/

Thinking of “health care as a right” has also led to a massive conflict between different groups in our society. One group doesn’t need to go out to work, either because they can work from home, or because they are wealthy enough to avoid work. Another group, needs to work, and cannot do so from home. Their jobs and businesses have been largely shut down due to local and state “stay at home orders”. This reflects the phenomena of “rights inflation”.

A collectivist tyranny dare not enslave a country by an outright confiscation of its values, material or moral. It has to be done by a process of internal corruption. Just as in the material realm the plundering of a country’s wealth is accomplished by inflating the currency—so today one may witness the process of inflation being applied to the realm of rights. The process entails such a growth of newly promulgated ‘rights’ that people do not notice the fact that the meaning of the concept is being reversed. Just as bad money drives out good money, so these ‘printing-press rights’ negate authentic rights….The ‘gimmick’ was the switch of the concept of rights from the political to the economic realm. The Democratic Party platform of 1960 summarizes the switch boldly and explicitly….The right to a useful and remunerative job…The right to adequate medical care and the opportunity to achieve and enjoy good health….If some men are entitled by right to the products of the work of others, it means that those others are deprived of rights and condemned to slave labor.” (Capitalism: The Unknown Ideal, “Man’s Rights”, Ayn Rand https://courses.aynrand.org/works/mans-rights/ , emphasis added.)

If “health care is a right”, then “health is a right” – and it will conflict with other people being able to earn a living with shelter in place orders. The wealthy, who don’t need to work, will tend to see “health as a right” that trumps the right to earn a living by people of lesser means. White-collar workers, who can work from home, will tend to focus on “the right to health”, while service industry people in the restaurant and “non-essential” retail businesses will want to leave home. Who do you think has more influence in Washington and the State Capitals? The wealthy/white collar types, or the poor and service-industry employees?

The retired elderly, who are more susceptible to COVID-19, will also tend to see “health as a right”, that overrides the need of younger adults to earn a living, and of children to obtain an education . Who do you think has more political influence in Washington and at the State and local level? The politicians know senior citizens vote, while the young do not.

Right now, the US has enough wealth that it can manage without people actually starving. Not so in other areas of the world. The lock-downs in Africa are causing people to go without food:

Four weeks into a 35-day lockdown poor communities are facing food shortages as incomes for mostly informal workers have dried up.”

https://news.yahoo.com/violence-looting-point-food-crisis-africa-lockdown-112929125.html

The wealthy of Africa don’t care. They have plenty of food, so they will choose to reduce their health risk, and they’ll impose that choice on the poor.

Years of thinking of “health care as a right”, without considering the context of who is to pay for it and who is to provide it, has resulted in the present conflict between those who can afford the lock-down (the elderly, the wealthy, and white collar workers), and those who cannot afford it (the young, service industry workers, and the working poor.) “Rights inflation” has destroyed real, individual rights to life, liberty, and property. It has lead to “pressure group warfare” in the legislature and government as different interest groups try to ensure their group’s interests are advanced at the expense of other groups. (What I call a “cold civil war”.)

In reality, there is no “right to health care” or “right to food”. There is a right to take the actions necessary to maintain your life, while leaving others free to do the same, by not using physical force against them to deprive them of their values. All law must hold this principle as its touchstone. You have a right not to be robbed. You have a right not to be murdered. You don’t have a right to get together a big enough gang of lobbyists in Washington DC or at the Dallas County Commissioners Court, and then “legally rob” other people through taxes and regulations -or force them to remain in their house and off their job.

(2) The Collectivist Idea of “Prophylactic”, or “Preventative” Law.

“Preventative law”, or “prophylactic rules”, is not aimed at prohibiting the violation of individual rights. It is law aimed at preventing certain actions that could potentially lead to the violation of individual rights. It arises because legislators do not fully understand or comprehend what the purpose of government and law is in the first place: To allow men to live their lives in a social environment, free from the initiation of physical force.

“Gun control” laws are an example of preventative law the left loves. The left wants to stop people who might kill with a gun by banning them for everyone. But, if government officials are entitled to initiate physical force against those who merely choose to own a gun, then there is nothing, in principle to stop them from initiating physical force against anyone deemed a “potential threat”.

Another example are most “environmental regulations”. These laws prohibit certain economic activity not because someone has actually been injured by another person’s pollution coming onto their property, but merely because a business *might* injure someone with its activities.

Another, more relevant, example with regard to the current COVID-19 crisis would be a curfew law. Such a law is enacted to prevent all persons from going outside after a certain hour, because there is a small number of criminals who commit armed robbery at night. This was the example provided by Ayn Rand on a discussion of the concept of law, recorded in the 1960’s. (http://aynrandlexicon.com/ayn-rand-works/objective-law.html. -Starting at about 14 minutes in, Miss Rand discusses this issue for preventative law, and gives the example of curfew laws. She says a small number of people might engage in “night hold ups”, what we’d call a mugging today, but she did not believe it is justification for holding the best in society to the level of the worst in society.)

Preventative law is very common in the laws regulating businesses, and has been for about a hundred years now:

“…’protective’ legislation falls in the category of preventive law. Businessmen are being subjected to governmental coercion prior to the commission of any crime. In a free economy, the government may step in only when a fraud has been perpetrated, or a demonstrable damage has been done to a consumer; in such cases the only protection required is that of criminal law.” (Capitalism: The Unknown Ideal, “The Assault on Integrity” Alan Greenspan.)

The effect of preventative law is to make it difficult to maintain your life. Second Amendment advocates will say something like “when guns are outlawed, only the outlaws have guns”. This is said, in part, because “gun control” makes it impossible to legally use a gun for self-defense. A law-abiding person is being held to the level of a criminal when it comes to “gun control”, even though there is no evidence he would commit a crime with a gun.  In the case of the COVID-19 emergency, those who want to earn a living are being legally prevented from doing so, even though there is no evidence they are sick.

Similar to “gun control” laws and “environmental laws”, with COVID-19, the left wants to stop the vast majority of people from living their lives, with zero due process, and zero evidence that they are sick or contagious.

(3) The Collectivists Hold a “Platonic Guardian” View of Science, and a Distrust of the “Common Man”

The father of collectivism in Western Civilization is Plato. He divides his collectivist “Republic” into three classes: the producers, the auxiliaries, and the guardians:

“The guardians are responsible for ruling the city. They are chosen from among the ranks of the auxiliaries, and are also known as philosopher-kings.”  https://www.sparknotes.com/philosophy/republic/characters/

Today’s leftists view themselves as our society’s philosopher-kings. Their attitude is: “Don’t bother explaining the science to the people. Don’t try to obtain voluntary consent. The people are too stupid to understand. Force is necessary. Force is the only method that is efficacious.”

The hallmark of collectivists is their deep-rooted distrust of freedom and of the free-market processes; but it is their advocacy of so-called ‘consumer protection’ that exposes the nature of their basic premises with particular clarity. By preferring force and fear to incentive and reward as a means of human motivation, they confess their view of man as a mindless brute functioning on the range of the moment…” (Capitalism: The Unknown Ideal, “The Assault on Integrity” Ayn Rand.)

This attitude of the elite philosopher-king who will rule over the rest of us is seen in a common argument amongst environmentalist politicians, which is something along the lines of: “97% of scientist agree that human beings are causing average global temperatures to go up.”  https://www.forbes.com/sites/uhenergy/2016/12/14/fact-checking-the-97-consensus-on-anthropogenic-climate-change/#45e4f5b71157

This is not an argument based in evidence or logical argument. It’s a sort of “argument from authority’” (At one time, the majority of authorities thought the Earth was the center of the universe.) What matters is the evidence, which can be communicated to anyone with a normal brain. If there is evidence, then show the evidence. Don’t just belittle people and tell them there is a scientific consensus, but they’re too stupid to understand the science.  (This argument is probably being used because most of the reporters and politicians who think average global temperatures are going up due to human activity don’t understand the science themselves.)

If you went to the doctor’s office, and he said: “You need immediate surgery, but I’m not going to tell you where or why -just trust my authority as a doctor,” you’d likely want more of an explanation. To the philosopher-king left, no such explanation is necessary or useful during the present COVID-19 crisis. Just obey them because they know better. These decisions are often being made by state governors and mayors, using ill-defined “natural disaster statutes”, with little or no input from legislatures or courts. The actions of California Governor Gavin Newsom, Dallas County Judge Clay Jenkins, and Michigan Governor Gretchen Whitmer reflect the two-thousand-year-old ideas of Plato. Our “Philosopher-king” governors and mayors will rule over us, the “unwashed masses”. We’re too stupid to make our own decisions.

In Ayn Rand’s novel Atlas Shrugged, a major character is a government scientist who sets himself up as a sort of “philosopher-king”, who wants state funded science because he thinks the people are too stupid to make their own decisions, or to understand science. This is the story of Dr. Robert Stadler. He was a brilliant scientist, disgusted by the profit motive and the need to earn a living. He viewed science as something that should be pursued, not to serve human life, but as a “pure intellectual pursuit”. For Dr. Stadler, “reason” wasn’t “man’s means of survival”. It was a sort of Platonic “end in itself”.

Prior to the start of the novel’s main plot line, Dr. Stadler had used his reputation as a scientist to obtain governmental funding for a “State Science Institute”, so that he could pursue “science without a profit motive”. In the end, all that the “State Science Institute” produced was a weapon of mass destruction aimed at the subjugation of the American population. (A fictional version of the atomic bomb.)

The last scene involving Dr. Stadler is him physically wrestling for control of the weapon with Cuffy Meigs, a “two-bit” “mafia type”, who has risen to power in the corrupt government of a dystopian near-future America. Cuffy Meigs has no respect for science or reason. His only interest is gaining power through the use of physical force, and he’s better at it than Dr. Stadler.  I think what Rand was trying to say here is: Beware all you men of science who think the masses are too stupid to understand your ideas, so you want to substitute force for voluntary persuasion. If you try to set yourself up as a philosopher-king who rules by the use of force, you’ll ultimately loose to the criminal thugs of the world, who are better at violence than you’ll ever be. The criminals who will come to power will care little for science or reason.

If reason is discarded in favor of force, then the winner won’t be the person with the most logical argument. It’ll be the person with the biggest gun, and who is most willing to use it.  The most brutal will come to power, not the men of reason. It’s the thugs like Stalin and Mao Zedong who will be in the political driver’s seat, not a Newton or Galileo.

When individual rights are outlawed, only the criminals will have guns.

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If it’s collectivism that is driving current governmental policy when it comes to COVID-19, someone might ask what is my alternative? It’s fine and good to talk about individual rights, but how would a more capitalist society, committed to the respect of rights to life, liberty, and property, deal with the problem of a pandemic? This is a fair question.

Part of the problem is the average American has a difficult time even imagining what a truly capitalist society would look like. They make assumptions that are collectivist, often just by “default” because “that’s just how it is done” in their minds. Non-academic Americans value individualism and the egoistic “right to pursue happiness”, but they cannot always translate that into practice when it comes to our legal system and institutions. This is not a failing of the American people at large. It’s a failure of intellectuals, college professors, newspaper reporters, economists, lawyers, and politicians to present and explain such ideas. The majority of the intellectual elites are hostile towards individualism, and don’t believe people should pursue their own happiness. “Selfishness” is a dirty word for most of the elites in our society.

How would a government under capitalism deal with a viral pandemic? 1

I want to briefly address another set of ideas circulating in our society. These ideas tend to fall under the term “conservatism”, although, like “liberalism”, that is a poorly-defined term. “Conservatism” tends to reject collectivism, but one strand of that school of thought wants to replace it with religion and faith. In other words, it wants to replace the Enlightenment ideas of John Locke and Isaac Newton with those of the early Middle Ages. The early Middle Ages, the Dark Ages, were characterized by the fall of the Roman Empire, ignorance, the destruction of trade, reduced standard of living, “…frequent warfare and a virtual disappearance of urban life.” https://www.britannica.com/event/Dark-Ages

Today, cultures dominated by religious faith are mostly found in the Muslim world. Religious theocracies like Iran are characterized by violence and the violation of individual rights in order to prepare people for the afterlife. It’s beyond the scope of what I’m writing here, but,  I’ve read a compelling argument for the possibility that a large crisis like the COVID-19 pandemic could lead to a rejection of modernism in favor of some version of religion. It would probably take the form of a Christian theocracy in Europe and North America. In other words, it’s possible that religious faith, which still exists to some greater or lesser degree in the minds of Western men, could come to the surface, especially if Westerners widely viewed science and modernism as having failed them during a major crisis. (I refer the reader to “The DIM Hypothesis” by Leonard Peikoff for more on that.) This would largely be the fault of academics and philosophers as well, since they’ve spent the last hundred and fifty years attacking reason. (See “Explaining Post Modernism: Skepticism and Socialism From Rousseau to Foucault”, Hicks, 2018; see, also, The Ominous Parallels, Leonard Peikoff.)

(1) Privatized Cities

First, it must be understood that cities would be private under capitalism. Every square inch of a city would be owned by some particular person, or group of people. There would be no “public property” at all. Force is not used to fund a private city, and all standards of behavior and business safety are established by voluntary contract. (With contracts being enforced by the court system.)

Even today, there already are “quasi-private” cities to some degree.  You see this, at least partially, with “planned communities”. A developer will build an entire city grid with streets, neighborhoods, schools, parks, and business districts. Then, anyone who wants to move there, must agree to the conditions of the developer. There is a preexisting agreement not to build a commercial warehouse right next to a neighborhood with families in it. Bars are located in one section of the town, while schools and families are in another, etc. An example of an almost entirely private city may be Celebration, Florida, which was created from scratch by the Walt Disney Corporation.

Major cities are seeing the worst of the COVID-19 pandemic. In the United States, New York, New Orleans, and San Francisco have been hit hard. These are all “port” cities, with a large flow of people and goods into, and out of the country. Additionally, they are “high density” populations, so the virus can easily spread once it comes into one of these cities.

People living in high-density, high-immigration cities like New York, are, in a sense, imposing the likelihood of pandemic on the rest of the nation. It’s an example of what economists call a “negative externality”.  People who might become sick due to risky behavior, but are asymptomatic carriers, are wanting to move about and earn a living. When some of them become sick, they then infect other people, who develop more serious symptoms or even die. The people who get sick, but are asymptomatic, are unwittingly imposing the cost of their more-risky behavior on those who do not want the risk:

The spread of COVID-19 is a great example of an externality, which is an economic term for a cost or benefit incurred or received by a third party. The best example of a negative externality is air pollution, such as when a factory emits air pollution that imposes a cost on neighbors.” https://www.cato.org/blog/less-costly-ways-reduce-harm-covid-19-without-travel-immigration-bans

Negative externalities arise because private property rights in a particular sphere are non-existent, or not well-defined. The solution is to define private property rights, and distribute “public property” to private owners. (Through a public auction, or through some sort of distribution to taxpayers.)

The details of how you take an existing city and “privatize” it would take an entire paper of its own, but in principle,  the existing residents of the city, who pay the local taxes, should all be given shares in a corporation that owns all of the previously-public infrastructure. These shareholders then have a right to elect a governing board of directors. Coerced local taxes would be replaced by “user fees”. Shareholders have to pay the user fees, and abide by the rules. The corporation would be free to charge fees for the use of its facilities, such as the roads. The city could also impose health and safety rules as a contractual condition of living there. For instance, a local business would need to abide by health and safety rules in order to have access to the roads in the city. The business would be free not to abide by these rules, but they’d be limited to flying their customers in by helicopter, or some other means that doesn’t involve the use of the roads. Since most businesses couldn’t carry on without access to the roads, they’d all abide by the health and safety rules, or they’d shut down and move somewhere else. Those who don’t like the rules, can move to another city. Competition would then occur between cities to attract residents and customers by offering the best “package” of services, such as roads, utilities, and reasonable health and safety rules, at the lowest cost.

If there are only private cities, then pandemics could be more easily fought. The owners of private city infrastructure have a profit incentive to ensure that pandemics do not spread. Say there are three private cities, and one of them, City A, has a pandemic. Cities B and C can refuse entry from people from City A until the pandemic is over. In other words, instead of the government having to impose a lockdown on City A, all of the other cities will, effectively, “socially distance” at the city-wide level.

There would also only be private highways, and the owners of the private highways could set standards of health for who can travel on them. They would want to protect their customers, so it is even less likely that people from City A would be allowed to travel to City B while the pandemic in City A is going on.

This is a much more “granulated” and precise approach to preventing the spread of disease than at the border of a country, which causes unnecessary disruptions of trade and the flow of healthy people.

(2) Freedom of Immigration Can Increase Healthcare “Resources”

With the exception of short quarantines and refusing entry to terrorists at war with the United States, more immigration would reduce the chances of a viral pandemic spreading and overwhelming the healthcare industry. An example of this could be seen with the fires in Australia in 2019. During that emergency, firemen from around the world traveled to Australia to help put out the conflagration:

Firefighters from across the US have been helping since early December. On Saturday, a group of 20 will deploy and will be followed by another group of 80 on Monday, bringing the total to 175 American firefighters on the ground in Australia.

Canada, and New Zealand are also part of a mutual aid system, helping Australia in its firefighting efforts.https://www.msn.com/en-us/weather/topstories/more-us-firefighters-heading-to-help-australia-fight-wildfires/ar-BBYBhzS

COVID-19 didn’t spontaneously arise all over the world at one time. It started in a specific city in China. It spread from there to the rest of the world, then it spread to nearby countries like South Korea, Hong Kong, and Taiwan.  (With air travel causing it to spread further, faster.)

If COVID-19 had been revealed sooner, it might have been possible to stop it before it started with doctors and healthcare workers coming into the area to treat patients, similar to what firefighters did in Australia. The spread of COVID-19, however, was moved along by the suppression of information by the Chinese government, which does not respect individual rights, like freedom of the press or freedom of movement.

(3) “Socially Distance” Ourselves From Authoritarian and Totalitarian Nations

The existence of “bad actors” like China makes a viral epidemic more likely to spread to freeer, more capitalistic countries like the United States and Western Europe. The suppression of individual rights in countries like China would have to be addressed by specific foreign policy actions of a fully capitalist nation. Open warfare with nations like China may not always be possible, perhaps because they possess nuclear weapons, making it too risky, or simply because it is not in the national interest of the capitalist nation to go to war with them, in terms of cost and lives lost.

How would a capitalist republic deal with bad actors like China, short of open war? By not dealing with them, and encouraging, but not forcing, their citizens not to deal with them.

A capitalist nation would recognize that it is, in a sense, at war with all totalitarian states, even if no shots are being fired. A free society and a totalitarian state are not compatible. Short of open warfare, which might not be feasible, here are some alternative solutions:

a. Economic boycott – Private citizens within the capitalist nation can be urged to voluntarily sign contracts stating that they will not have business dealings with totalitarian states, and the contracts only become enforceable in a court of law when a sufficient number of people have signed the contract. For instance, there could be a contract which would say: “I agree, upon 75% of the rest of US Citizens signing this contract, to boycott all Chinese companies, and have no business dealings with them for X number of years.” People would then be shown the many atrocities committed by nations like China, and persuaded, using reason and evidence, that dealing with such a country is not in their long-term interests.

b. No Enforcement of Contracts with Chinese Businesses and Nationals – United States Courts would have their jurisdiction to enforce contracts with companies or persons from totalitarian states withdrawn by Congress. (This might take a Constitutional Amendment.) If a US business takes delivery of goods from China, and doesn’t pay, the Chinese business has no recourse in US courts. If a Chinese company wants its money before delivering goods, and then that Chinese company doesn’t deliver the goods, a US court wouldn’t have jurisdiction to enforce the contract. Trade with China would be reduced to Chinese nationals bringing goods to the US for cash exchange. This would eliminate a lot of trade between the US and authoritarian and totalitarian nations, because neither side in a trade could rely on the enforcement of contracts.

c. Higher Voluntary Taxes on Businesses Engaged in Trade With China – This gets into how government would be funded under Capitalism. There are several alternatives. Most of them revolve around paying some sort of fee for government services. For instance, in order to have one’s contract enforced in a court, it would be necessary to pay a certain percentage of the value of the contract ahead of time. A contract for the sale of $100 of goods might have a 5% contract enforcement fee, in which $5 must be paid to the government as “insurance” against breach. In recognition of the fact that any US person doing business with Chinese companies and nationals is helping to prop up that regime, the government could impose a higher contract enforcement fee. The higher fee would cover the cost of increased military spending that is necessary to keep the United States safe. So, a person who does business with Chinese nationals, in any given year, might pay a 15% contract enforcement fee, rather than the usual 5%, on all of his contracts with other US citizens in the next year. In that way, US citizens would be highly discouraged from having business dealings with Chinese nationals at all.

Much higher voluntary taxes on Americans doing business with China are justified because they are making America less safe. They are imposing a cost on the rest of us, which can rightfully be recouped, to pay for extra military protection. The companies doing business with China should pay for the “negative externality” they are imposing on other Americans with their risky behavior. They’re free to do so, but not free to impose the cost on the rest of us.

Other laws relating to viral pandemics under capitalism are also possible. Some may even be better than the ones I have proposed here. The point is to show that a free society is not less “efficient” than an authoritarian one at dealing with the problem. The opposite is true. The principle of individual rights won’t guarantee man’s survival, but totalitarianism will make it impossible.