Category: Constitution – Courts – Law – Justice

The Left’s Double Standard on Harriet Miers

John Podesta, formerly a chief of staff to Bill Clinton and now a member of the Left’s traveling pack of attack dogs (same thing), writes at Think Progress:

Harriet Miers’ nomination fell victim to a right-wing double standard.

In his confirmation hearing, John Roberts affirmed the right to privacy, agreed with the conclusion of Griswold, and told the Judiciary Committee that he considered Roe v. Wade ““settled as a precedent.””

There is much in Harriet Miers’’ record to suggest she fell to the right of Roberts’ on the question of abortion rights. She does not consider Griswold settled law and had a record of supporting anti-choice causes.

John Roberts was enthusiastically embraced by right-wing conservatives eager to overturn Roe v. Wade. Harriet Miers was vilified by the exact same people.

Harriet Miers’’ nomination has always been controversial, but it was not until comments from a 1993 speech surfaced where she said she believed in ““self-determination” that Miers was presumably forced to withdraw.

It is clear that, absent an unambiguous pledge to overturn Roe, the right holds women nominees to a different standard. They do it because they fear a woman justice will feel empathy towards other women making the agonizing choice of whether to have an abortion. They fear that a woman justice would not be willing to use criminal sanctions to regulate other women’s decisions.

No nominee should be subject to a litmus test, especially one that discriminates based on gender.

Podesta’s hypocrisy knows no bounds. Imagine the impossible: Podesta on the talk-show circuit defending Harriet Miers’s nomination because of her seemingly inconsistent views about abortion and her disdain for Griswold v. Connecticut.

The double standard on display is that of the Left, which prefers the litmus test of “diversity” to the litmus test of competence. Most conservatives who were outraged about Miers were outraged long before Miers’s ramblings about “self determination” came to light. And they were outraged because of Miers’s evident faults: little or no relevant legal experience, a muddled mind. In sum, conservatives put quality above diversity.

Such a concept would never cross the mind of a John Podesta, whose lack of interest in Miers’s judicial qualifications is exceeded only by his cynical delight in conservative-bashing.

(Thanks to SCOTUSblog for the pointer.)

Speaking of States’ Rights and Judge McConnell

I wrote recently that

I favor States’ rights — as long as States’ rights advance liberty. The Left (Stevens-Souter-Ginsburg-Breyer) wing of the Supreme Court has no such agenda. The Court’s Left wing has as its main agenda the advancement of governmental power. Anyone who applauds the Left wing’s accidental embrace of States’ rights (as in Kelo) might as well applaud the Dixiecrat wing of the Democrat Party for its cynical embrace of States’ rights in the defense of state-enforced segregation and denial of voting rights.

I’m reminded of the Stevens-Souter-Ginsburg-Breyer wing’s cynical appeal to States’ rights in Bush v. Gore. In Part I of Justice Ginsburg’s dissent (joined by Justices Stevens, Souter, and Breyer), she wrote “Rarely has this Court rejected outright an interpretation of state law by a state high court.” As if it were as simple as that.

Judge Michael McConnell, now considered a front-runner to replace Justice O’Connor, showed a much finer understanding of constitutional law when he wrote for OpinionJournal on Novemeber 24, 2000, about the then-unsettled case of Bush v. Gore:

One sentence of the Florida Supreme Court’s decision on hand recounts tells it all: “The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle.”

That is like saying, of a disputed umpire call in the World Series: “Athletic superiority, not a hyper-technical reliance upon the rules of baseball, should be our guiding principle.” In our system, the will of the people is manifested through procedures specified in advance. When those rules are changed in mid-stream, something has gone terribly wrong.

Article II of the U.S. Constitution provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” The Florida legislature has enacted a detailed election code, including an unambiguous deadline of seven days after the election for counties to report their results. No party to the litigation has argued that this statutory scheme is unconstitutional under either the federal or the state constitution.

As Judge McConnell pointed out on December 14, 2000, the majority in Bush v. Gore came to the right result but for the wrong reason:

[O]nly three justices–William Rehnquist, Antonin Scalia, and Clarence Thomas–were ultimately persuaded by the Article II argument. The majority rested entirely on the theory that the recount, as ordered by the Florida court, would violate the equal protection of the laws by failing to provide a uniform standard for vote counting, by counting some overvotes and not others, and by failing to recount the challenged results in Broward and Miami-Dade. That rationale was sufficiently uncontroversial to command widespread assent among the justices–even those presumably favorable to Mr. Gore. . . .

The court did not have the resolution to declare that no recount was necessary, or the patience to declare that a proper recount should proceed. That means, unfortunately, that Mr. Bush will take office under conditions of continued uncertainty. I do not think that part of the decision did him, or the nation, a favor.

Amen to that.

Understanding the Miers Nomination

Here’s my “conspiracy theory” of the day:

  • But Bush had to seem to want to replace O’Connor with another woman.
  • Bush therefore chose Miers, whose nomination he knew would be fiercely opposed on the right.
  • Given Miers’s position as White House counsel, her name could be withdrawn as a matter of principle (defense of the separation of powers).
  • Bush’s withdrawal of the Miers nomination would not only please the right but also not be seen as a bow to the left.

Personally, if the real nominee is to be a male, I like David Bernstein’s suggestion: Judge Douglas Ginsburg (he of the “Constitution in Exile“).

A Useful Precedent

UPDATED BELOW AT 1:40 PM (CT) 10/23/05

Orin Kerr of The Volokh Conspiracy comments on a decision by the Kansas Supreme Court:

The Kansas Supreme Court issued its decision in Kansas v. Limon [yesterday], invalidating a Kansas statutory scheme that imposed higher punishments for same-sex sexual misconduct than opposite-sex sexual misconduct. . . .

Limon argued that Kansas law violated the equal protection clause of the Fourteenth Amendment because if the act had taken place between opposite sex participants, Limon would have received a much lower punishment . . . than he did. . . . The Kansas Supreme Court agreed, finding that the different treatment did not survive rational basis scrutiny and was therefore unconstitutional under the Equal Protection clause. . . .

It seems to me that (1) the Kansas Supreme Court’s reasoning is correct and (2) the same reasoning can be applied to so-called hate-crime statutes, in which the penalty for a crime is based on its supposed motivation rather than its actual severity.

UPDATE: I knew that I should have addressed the distinction between motivation and intention. Because I didn’t do so, a reader took issue with what I wrote above by suggesting (wrongly, I believe) that “the criminal law system is largely built on the fundamental premise of punishing crimes based on motivation rather than outcome.” He pointed me to the Wikipedia article about manslaughter. I found the article about murder to be more helfpful in drawing the distinction between motivation and intention:

In law, murder is the crime of a human being causing the death of another human being, without lawful excuse, and with intent to kill or with an intent to cause grievous bodily harm. . . .

  • Unintentionally caused deaths due to recklessness or negligence are treated in most countries as the lesser crime of involuntary manslaughter or criminally negligent homicide
  • Intentional killings without premeditation are sometimes charged as voluntary manslaughter rather than murder.

The distinction between murder and voluntary manslaughter rests on the timing of intention — whether or not the killer intended to kill the victim before the encounter that led to the victim’s death. The distinction between voluntary and involuntary manslaughter rests on whether or not the killer intended to kill the victim. Proving motivation (or lack thereof) may be crucial to proving intention, and the timing of intention. But the distinctions between murder, voluntary manslaughter, and involuntary manslaughter revolve around intention and its timing with respect to the act of killing.

A hate crime, on the other hand is defined by motivation:

A hate crime is a crime (not necessarily a violent crime, though sometimes so) that is motivated by prejudice against a social group. . . .

In the last decade of the 20th century, legislation in many U.S. states has established harsher penalties for a number of crimes when they are also considered hate crimes. . . .

[H]ate crime prosecutions seek to punish an individual for motive rather than intent. For example, the difference between first or second degree murder is intent, not motive. . . .

In sum, the logic of hate-crime legislation plays out like this:

  • A (a man) murders B (a woman), with premeditation, after learning that B has embezzled funds from A. A’s sentence is, say, 20 years to life, with the possibility of parole.
  • A murders B, with premeditation, after learning that B has been involved in a lesbian affair with A’s wife. A is shown to have expressed his distaste for lesbianism. A’s sentence is, say, life without parole.

In both cases A murders B with premeditated intent. But in the second instance A receives a harsher sentence because his motivation was animus toward lesbianism. I don’t get it. Why is the crime worse because B is a lesbian rather than an embezzler? Murder is murder and ought to be treated as such by the law.

There’s already more than enough mind-reading involved in drawing lines between various degrees of murder and manslaughter, not to mention other types of crime in which similarly fine distinctions arise. Hate-crime legislation compounds the already difficult task of mind-reading and widens the gap between the act (e.g., killing) and the punishment for that act.

The result is to give preference to certain identifiable groups (e.g., homosexuals) while, by implication, denigrating others (e.g., embezzlers). Or, to turn it around, the result is to treat the murderers of embezzlers more leniently than the murderers of homosexuals. Either way you look at it, hate-crime legislation seems to run afoul of the Fourteenth Amendment’s guarantee of “equal protection of the laws.”

Related posts:

I’ll Never Understand the Insanity Defense (03/31/04)
A Crime Is a Crime (11/26/04)

The Corporation and the State

The existence of the corporation (and such similar entities as limited liability companies) encourages business and capital formation by mitigating investors’ personal risks. Because the corporation is state-sanctioned, some apologists for the state like to argue that the existence of the corporation is a proof of the indispensibility of the state.

The existence of the corporation, in fact, proves no such thing. Absent the state, investors could indemnify themselves through private contractual arrangements, that is, insurance pools.

The state exists because powerful individuals and coalitions with an agreed agenda find it convenient to enforce that agenda through an entity that has a monopoly of power in a geographical area. The desirability of a particular state can be judged only by the extent to which its agenda fosters the unforced evolution of peaceful, voluntary, social and business arrangements.

States’ Rights and Skunks

In light of the preceding post, I want to make it perfectly clear that I favor States’ rights — as long as States’ rights advance liberty. The Left (Stevens-Souter-Ginsburg-Breyer) wing of the Supreme Court has no such agenda. The Court’s Left wing has as its main agenda the advancement of governmental power. Anyone who applauds the Left wing’s accidental embrace of States’ rights (as in Kelo) might as well applaud the Dixiecrat wing of the Democrat Party for its cynical embrace of States’ rights in the defense of state-enforced segregation and denial of voting rights.

When it comes to the advancement of liberty, it is only fitting and proper to deploy every legal argument at one’s disposal — as I have tried to do in the preceding post. The old saying goes that you can’t win a peeing contest with a skunk (i.e., the Left wing of the Supreme Court). My version goes like this: Sometimes you can’t avoid a peeing contest with a skunk; that’s when you stand back a safe distance and blast it with a fire hose.

When it comes to the defense of liberty, a timid bow to States’ rights is no virtue and an attack on States’ rights isn’t always a vice.

Kelo, Federalism, and Libertarianism

UPDATED BELOW

Doug at Below the Beltway joins Scott Scheule of Catallarchy in arguing that Kelo v. City of New London was rightly decided in the 2004-5 term of the U.S. Supreme Court. The Supremes, as you undoubtedly recall, upheld the right of the City of New London, Connecticut, to condemn private property for redevelopment. The rationale, in brief: The city’s redevelopment plan serves a public purpose under the “takings clause” of the Fifth Amendment because the plan enables the city to generate higher tax revenues.

Doug and Scott are buying into the argument that Kelo was rightly decided on federalism grounds; that is, the central government oughtn’t intrude in matters best left to State and local governments. Scott says, in part, that

Kelo is undoubtedly a glorification of federalism. In a decision nothing short of miraculous, the liberal members of the Court deferred to a state’s judgment. Is that not precisely what a federalist should want? A professor once told me the true test of your belief in individual freedom is when you think people should be free to do even the things that you would prefer them not do.

I propose that, by the exact same token, the true test of your belief in states’ rights is when you think states should be free to do even the things that you would prefer them not do. The alternative is often to simply pick and choose which government, federal or state, you would like to defer to based on nothing more than your personal political preferences. It is not exactly an unpopular philosophy: indeed it is the policy of much of the Supreme Court today. Still, the blatant inconsistency seems unsatisfactory.

Assumedly many of us are federalists because we believe the federal government does things badly. Is there any reason why this principle, if true, should be the case in issues of, let us say, euthanasia or drug use, and not hold when it comes to issues of eminent domain?

There is a deep tension here.

And though, as Justice Thomas quite rightly perceived, “something has gone seriously awry” with the Court’s interpretation of much of the Constitution, I disagree there is something awry with the interpretation of this particular provision.

I expect this post to make me exceedingly [un?]popular in libertarian circles.

The post should make Scott exceedingly unpopular (temporarily, one hopes) because of its wrongheadedness. Being a libertarian and being a federalist are two entirely different things. A libertarian would oppose government land-grabbing regardless of which level of government is doing the grabbing. Scott simply has to decide whether he’s a federalist or a libertarian.

Moreover, Kelo was not decided rightly, even when viewed through the lens of federalism. The key can be found in Doug’s incorrect assertion that

[t]he 5th Amendment, as originally written, applied only to the Federal Government, not the states. It was only through several decades of tortured jurisprudence that we have come to accept the idea that the 14th Amendment “incorporated” most (but not all) of the provisions of the Bill of Rights and made them applicable to the states, thus giving Federal Courts jurisdiction to determine the Constitutionality of the actions of state and local governments in a way that they did not have under the Constitution as originally understood.

Now, whatever you may think about “incorporation,” certain parts of the Bill of Rights were meant, from the beginning, to bear on certain kinds actions by any and all governments in the United States. The Fifth Amendment clearly belongs in that category, as do Amendments II, IV, VI, VII, VIII, and X.* It’s important to remember that the U.S. Constitution wasn’t meant (or written) as a “set of rules” applicable only to the central government but, rather, as a sorting out of the rights and powers of the newly created central government, the governments of the various States, and the people. The Bill of Rights must be understood as a clarification of that broader sorting out, and not simply as a set of restrictions on the central government.

Consider the Fifth Amendment, specifically:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It was well understood in 1791 that the prosecution of almost all crimes was a matter for State action, which is why the Fifth Amendment specifically enumerates the kinds of cases that then came under the jurisdiction of the central government: “in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” Thus, given its main focus on crime and punishment, the Fifth Amendment clearly applies to the States as well as to the central government (no “incorporation” is necessary, thank you). The position of the “takings clause” — in a string of clauses that clearly apply to the States — means that the Fifth Amendment, from the moment of its adoption, was meant to proscribe takings by States (and their subordinate jurisdictions), when such takings aren’t for “public use” (which means public use).

Kelo was wrongly decided, period.

UPDATE: Doug, as I hoped he would, has posted a reply to this post. He responds, first, to my statement that one must decide whether one is a libertarian or a federalist:

[T]he choice is not so much between being a libertarian and being a federalist as it is between being a libertarian and being faithful to the original understanding of the Constitution. Judicial activism can exist not only on the left, but also on the right and there have been those who have argued for what is essentially a form of libertarian judicial activism which concerns itself more with the results of a judicial decision than with whether that decision is a correct interpretation of the Constitution. If you believe that judges should be faithful to the original understanding and intent of the Constitution, as I do, then that means being a federalist.

Federalism was at the heart of the Constitution when it was drafted. The Federal Government and its institutions, including the Supreme Court, were intended to be weak as compared to the states. This can be seen in the Constitution itself, which strictly defined the powers of Congress and the President but has very little to say about the powers of the states.

Fine, but that leaves libertarians to fight for liberty while federalists fight for States’ rights, whether or not those rights are compatible with liberty.

In any event, the original Constitution does say some things about the powers of the States, not the least of which is the second clause of Article VI:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Madison’s view was that the federal Bill of Rights ought to be supreme. I quote from Irving Brant’s The Bill of Rights: Its Origin and Meaning (1965 edition, pp. 49-50):

The next contention Madison took up [in 1789, as chairman of the House committee to consider and report amendments to the Constitution] was that a federal Bill of Rights was not needed because state declarations of rights were still in force. The solemn acts of the people in putting such declarations in their state constitutions, it had been said, could not be annihilated by their later establishment of a general government whose express purpose was “securing to themselves and posterity the liberties they had gained by an arduous conflict.” (Here again the objectives of the American Revolution were defined in terms of the guarantees contained in bills of rights.)

Madison found this objection inconclusive. In the first place it was too uncertain ground on which to leave a matter considered so important by the people. “Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.”

Here Madison refuted in advance an argument later utilized to undermine the basic freedoms — the contention that the defects in state bills of rights should be used to measure the purpose, force and extent of the federal guarantees. In reality, those defects were used as an argument for adoption of a strong federal bill of rights, instead of being evidence of weakness in the one adopted.

This brought Madison to the question of enforcement. It had been said that a federal provision would be useless “because it was not found effectual in the constitution of the particular States.” True it was that there were few states in which the most valuable rights had not been violated. But it did not follow that they had no salutary effect against the abuse of power. He saw two great protective agencies that would support the federal guarantees of liberty. . . .

The other protection was to come from the states:

“[T]here is the great possiblilty that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a federal government admit the State Legislatures to be sure guardians of the people’s liberties.”

. . . The Constitution, [Madison] told the House, already contained wise and proper restrictions on the states in the words “No State shall pass any bill of attainder, ex post facto law, etc.” There was more danger, he thought, of those powers being abused by state governments than by that of the United States.

Madison wanted the States to be bound by the Bill of Rights, morally as well as legally. Congress did restrict the applicability of the First Amendment to acts of Congress, but mainly because it saw First Amendment rights as being adequately protected by State constitutions (even though they weren’t always). It is telling that Congress did not insert similarly restrictive language into Amendments II through VIII, that is, the other original amendments that prescribe specific rights. The omission speaks volumes about original intent, as do Madison’s views.

If Chief Justice John Marshall, in Barron v. Mayor & City Council of Baltimore (1833), had chosen to invoke Madison’s original intent, we would not be having this argument. The “takings clause” would have been understood to apply to the States and their subordinate jurisdictions. We would have been spared piecemeal “incorporation” of the Bill of Rights, which has yet to apply the “takings clause” to the States, as it should have in 1833.

I conclude that Barron was wrongly decided by a Chief Justice who went against the accepted view of the Bill of Rights. I again quote Brant, writing about the adoption of the Fourteenth Amendment (p. 322):

. . . Bingham . . . had the erroneous impression that the first eight amendments were intended to restrict both the federal and state governments. That belief was widely held among legislators, laity and lawyers during the first half century after the amendments were adopted, and it persisted even after Marshall’s Supreme Court decided in Barron v. Baltimore (1833) that they did not apply to the states.

Why does Brant assert that there was from 1791 until 1833 (and even later) a prevailing “erroneous” impression about the scope of the first eight amendments? Here, Brant goes in a circle. The prevailing impression was erroneous because of Barron, which was decided 42 years after the adoption of the Bill of Rights. But Barron is where Brant rests his case. In particular, Brant says (p. 326)

that in a Constitution setting up a government of limited powers, any “limitations of power, if expressed in general terms,” must apply to the government created by that instrument. [The quotation is from Marshall’s opinion in Barron.]

But the first eight amendments are decidely not general. Nor does the original Constitution simply limit the power of the central government, it also limits the powers of the States both generally (in Article VI) and specifically (in Articles I and IV).

Brant hangs his hat on Barron, which flies in the face of Madison’s intent and 42 years of acceptance of that intent by “legislators, laity and lawyers.”

In sum, Kelo was wrongly decided because Barron was wrongly decided.
__________
* If you still think that the Bill of Rights restrains only the central government, and not the States, read Amendments II, IV, V, VI, VII, VIII, and X together:

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment X

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

The Case of the (Happily) Missing Supreme Court Nominee(s)

A timely post by “Rice” at Southern Appeal assesses the happiness and unhappiness of party regulars with the Supreme Court picks of presidents since JFK’s day. Rice’s analysis reminds me of the happy fact that one James Earl (call me “Jimmy”) Carter had no picks. Given the ability of Democrats to pick stalwart Leftists — and the inability or unwillingness of Republicans to oppose them — imagine the Court’s current configuration had Carter been able to place one or more of his ilk on the Big Nine.

Rice’s post also convinces me that Senate Republicans should demand the withdrawal of Harriet Miers’s name in favor of a judge with a track record of “strict constructionism.” Given the strong possibility that a Democrat will win the 2008 election, Bush shouldn’t squander a single opportunity to point the Supreme Court in the right direction.

Further Erosion of the Employment Relationship

UPDATED TWICE BELOW

From the law firm of McGuireWoods:

The National Labor Relations Board recently held that an employee’s statements to a local newspaper and subsequent postings on an Internet message board in the context of labor organizing were protected activity under the National Labor Relations Act.

Following the purchase of a manufacturing facility and subsequent layoff of roughly 200 employees by the new owner, the union attempting to organize the facility’s employees approached a retained employee to talk to a newspaper about the firings. The newspaper quoted the employee that the layoffs “left gaping holes in this business”. The company warned the employee that such comments violated the employee handbook because they were disparaging to the company, and that the employee would be fired if he did it again. Two weeks later, the same employee responded to an anti-union posting on the newspaper’s internet message board. Among other statements, the employee stated in his post that the company was “being tanked by a group of people that have no ability to manage it.” He was fired soon after, and the union filed an unfair labor practice.

Affirming the statement that management “cannot be too thin-skinned,” the Board affirmed the ALJ’s decision that the activity was protected for three reasons. First, the newspaper quote and internet posting both involved employment matters. Second, there was a sufficient link between the statements and the ongoing controversy. Finally, the Board ruled that the comments were “not so egregious” as to fall outside the realm of protected activity.

Clearly, the NLRB remains in the grip of Left-wing doctrines, if not in the grip of Left-wing members. It takes a lot of specious reasoning to hold for the employee in the case cited by McGuireWoods. First, the newspaper quote and internet posting were statements by the employee, not the employer. Second, the employee made the link between the statements and the “ongoing controversy.” Finally, the employee’s statements could be found to be “not so egregious” only by a body that is already biased against employers. In sum, the employee bad-mouthed his employer and got away with it simply because of an “ongoing controversy” about unionization. It’s an invitation to disgruntled employees to incite unionization. Apparently almost anything goes under the cover of an effort to unionize a workplace.

Is there a free-speech issue involved? Not at all. The Constitution’s guarantee of freedom of speech is — or was intended to be — nothing more than a guarantee that government cannot suppress speech. Of course, that guarantee has been vitiated by restrictions on such things as commercial speech and campaign speech.

Nothing in the Constitution gives anyone the right to disparage an employer and duck the consequences. In fact, nothing in the Constitution gives government the right to legislate unionism, in particular, or to interfere in employment relationships, in general.

The NLRB’s ruling is another dreary reminder of the many unconstitutional excesses of the New Deal.

UPDATE: A reader objects to my opening comment on the NLRB decision: “Clearly, the NLRB remains in the grip of Left-wing doctrines, if not in the grip of Left-wing members.” He says:

Left-wing doctrines maybe, but to imply the current Board members are a bunch of left-wingers is an absurdity. Anybody who even casually follows Board decisions readily admits that the Board has moved sharply toward management-side on the whole in recent years. If you feel the statute is left-wing, then your gripe is with Congress, not the Board–unless you can point to an example of the Board interpreting the statute in a left-biased way, which I expect you can’t.

My reply:

Regardless of the Board’s current ideological composition, it’s clear that the Board acted in a Left-biased way in the case at hand. I need look no further. The Board chose to interpret the employer’s actions as an act of interference with an attempt to unionize. I would have interpreted the employer’s actions as a justifiable course of discipline against an employee who contravened the employer’s stated policies.

I have had dealings with a similar body (the EEOC), and I doubt very much that the problem is statutory. No statute can prescribe precisely how a body like the NLRB must judge the motivations of employer and employee in a particular case. The Board made a judgment call, which smacks of complaisant adherence to decades of Left-wing precedent. Perhaps the Board is too willing to accept the recommendations of its Regional Directors and their long-serving staff employees, many of whom are likely to be imbued with the “rightness” of Left-wing interpretations of the NLRA.

Anyway, the sentence to which you object . . . means this: “The NLRB remains in the grip of Left-wing doctrines (interpretations of statutory authority), even though its members may (or may not) be Leftists.” . . .

I might have written this: “Clearly, the NLRB remains in the grip of Left-wing precedents that the Board’s current membership is too gutless to reverse.” But I’ll leave it as it stands.

UPDATE 2: My correspondent rightly notes that the National Labor Relations Act (Wagner Act), which established the NLRB, “could have been an overwhelmingly destructive statute.” Although it has been destructive enough, I agree that things could have been worse had the anti-business (and therefore anti-growth) intentions of its framers been executed down the line. But in spite of the intentions of the Act’s framers, its words (in my opinion) give the NLRB leeway for pro-employer decisions. It’s a shame that the NLRB didn’t take advantage of that leeway in the case highlighted by McGuire Woods.

The Legality of Teaching Intelligent Design: Part II

A few days ago I wrote about a debate between Francis Beckwith and Douglas Laycock over at Legal Affairs Debate Club. Their topic: “Is Teaching Intelligent Design Illegal?” I concluded with this:

A fundamental illegality occurs when a public-school teacher is barred by law from teaching about a possible explanation for the existence of life. As it also says in the First Amendment: “Congress [and, by extension, all governmental bodies] . . . shall make no law abridging the freedom of speech. . . .” It seems to me that a general proscription by any legislative body or court of the teaching of intelligent design as a possibility would be in violation of the First Amendment.

Laycock’s latest entry in the debate nevertheless includes this observation:

Religious students can believe what they want about God’s role in directing or even bypassing natural explanations. The Constitution protects all such beliefs, but they are not scientific beliefs, and they are not beliefs that can be taught—or opposed—in the public schools. The science course can teach only the best available natural explanation; it must leave all questions about supernatural explanations to the private sector.

In sum, freedom of speech on the subject of evolution comes down to this: If it isn’t science, it can’t be taught. Says who? Several months ago, in “Going Too Far with the First Amendment,” I wrote this:

Think of the fine mess we’d be in if the courts were to rule against the teaching of intelligent design not because it amounts to an establishment of religion but because it’s unscientific. That would open the door to all sorts of judicial mischief. The precedent could — and would — be pulled out of context and used in limitless ways to justify government interference in matters where government has no right to interfere.

It’s bad enough that government is in the business of funding science — though I can accept such funding wheere it actually aids our defense effort. But, aside from that, government has no business deciding for the rest of us what’s scientific or unscientific. When it gets into that business, you had better be ready for a rerun of the genetic policies of the Third Reich.

Aside from advancing us down the slippery slope toward absolute statism, the argument that schools should be in the business of teaching only that which courts deem “scientific” is nothing short of fatuous. If schools were in the business of teaching only scientifically valid lessons in government, history, and economics, most of the textbooks that praise government intervention in the economic and social order would have to be burned, for there is abundant evidence of the wrongness of such teachings.

I’ll make a deal with Laycock and his band of merry pseudo-scientists: I’ll let you ban the teaching of ID in public schools if you’ll let me reciprocate by banning the teaching of socialism in public schools.

The Legality of Teaching Intelligent Design

Francis Beckwith of Right Reason has begun a debate with Douglas Laycock over at Legal Affairs Debate Club. Their topic: “Is Teaching Intelligent Design Illegal?” Laycock, in his reply to Beckwith’s opening salvo, says

[i]t is entirely lawful for public school teachers to say we know much less about a natural explanation for the origins of life than about a natural explanation for the evolution of different species once life begins. But it would be an important additional step, sounding more in religion than in science, for the teacher to say that therefore, an intelligent designer must have created the first living things.

I understand the First Amendment’s proscription of the establishment of religion. But I cannot for the life of me understand why it should be illegal for a public-school teacher to suggest that an intelligent designer might have created the first living things. Neither evolutionary theory nor any other branch of science can disprove the existence of an intelligent designer (or God, for that matter).

A fundamental illegality occurs when a public-school teacher is barred by law from teaching about a possible explanation for the existence of life. As it also says in the First Amendment: “Congress [and, by extension, all governmental bodies] . . . shall make no law abridging the freedom of speech. . . .” It seems to me that a general proscription by any legislative body or court of the teaching of intelligent design as a possibility would be in violation of the First Amendment.

The FEC and Bloggers: Stay Tuned

McQ of QandO says: “In between the bookend hurricanes, the FEC still has bloggers in its focus.” In the linked story, Federal Election Commission vice-chairman Michael Toner

argued that political activity on the Internet fails to meet the campaign finance law’s threshold to stop corruption or the appearance of corruption. Toner urged Congress to pass a law that pre-empts the court’s action and ensures that the Internet remains exempt from campaign finance rules.

But

Scott E. Thomas, the FEC [chairman], said his agency’s original exemption for the Internet was a mistake and the FEC should come up with rules for Internet campaign ads in light of the $14 million spent on Internet ads in the 2004 campaign.

Thomas said Congress should hold off on any legislation until the FEC acts.

Another commissioner, Ellen Weintraub, said the agency preferred a “less is more” approach.

“This is appropriate because the focus of the FEC is campaign finance,” she said. “We are not the speech police.”

Glad to hear it, but the FEC is currently acting under an order from U.S. District Court Judge Colleen Kollar-Kotelly, which struck down the FEC regulations that had allowed those advertising on the Internet to avoid many of the requirements of McCain-Feingold. And so, if the judge has her way and you say anything positive about a candidate, or negative about the candidate’s opponent, you might be found to have given a campaign contribution in kind to the candidate. Then the FEC could have its way with you.

Thanks a bunch, judge. Also thanks a bunch to U.S. Reps. Christopher Shays and Marty Meehan, who brought the suit against the FEC, and to those great defenders of freedom of speech, Sens. John McCain and Russ Feingold, who filed an amicus brief in support of Shays and Meehan. What those paragons of liberty and their brethren in Congress want is for all of us to shut up, because silence favors incumbents.

What should happen is this: When the U.S. Supreme Court has its full complement of justices, some persons with standing (bloggers among them) would file a challenge McCain-Feingold. The challenge by Senator Mitch McConnell failed in part because he was deemed to lack standing, but it failed mainly because of the Court’s balance. Chief Justice Rehnquist wasn’t a wholly reliable support of free speech; Justice O’Connor is even less so. Two new justices, Roberts and ?, could swing the balance back toward freedom of speech.

But no matter how it comes out, they’ll have to pry this blog from my cold, dead hands.

The Supreme Court: Our Last, Best Hope for a Semblance of Liberty

In the second postscript to this post I reaffirm my conviction that government “could not have done as well as private citizens and business owners, had they been allowed to keep their tax dollars and use them to prepare for and recover from Katrina.” I then list several related posts. All of which, if read by anyone from Center to Left, would draw a retort along these lines: “How is a bunch of individuals going to deal with something as massive as a natural disaster. Only government can do things like that, and do them efficiently.” Or “There are just some things that people can’t be trusted to do for themselves.”

It’s precisely that kind of thinking which has brought us to where we are today: in the grip of the regulatory-welfare state, which has made us immensely less prosperous than we could be. Free-market capitalism, which is how individuals cooperatively make wise and fruitful decisions — when they are allowed to do so — has been brought to heel by legislators, executives, judges, and regulators.

A central rationale for the regulatory-welfare state, of course, is the notion that government should do things people can’t be “trusted” to do for themselves. There is the paternalistic assumption that someone else knows better than you how you should run your life. Paternalists are blind to the opportunity cost of paternalism, which is that when someone else makes your decisions for you, you are less able and less likely to make good decisions for yourself.

The paternalistic assumption, in other words, becomes a self-fulfilling prophecy. When government makes certain decisions for you (e.g., by providing “free” education and a sort of retirement program) and then charges you for the privilege, you are in a double bind. You are herded toward or forced into certain government programs, which may fall far short of meeting your needs. But because of the taxes and fees you pay to support those government programs, you are left with less money. Thus you may be unable to afford the better alternatives provided by markets — where markets are allowed to provide alternatives, at all.

Paternalism on the part of the central government supposedly is curbed by the enumeration of Congress’s powers in the U.S. Constitution, which enumeration has long since become an irrelevancy. In any event, when it comes to paternalism, State and local governments are always ready to pick up any slack left by the central government. The end of Lochner-era substantive due process (defended quite nicely, here) effectively unshackled State and local governments, which can now justify almost anything as a “compelling governmental interest.” And, if they can’t, the U.S. Supreme Court can continue to manufacture other excuses for paternalism, as majorities of its members did this year in Raich and Kelo.

So, where does it all end? Unless the U.S. Supreme Court is turned around fairly quickly, I think it ends in the continued expansion of state control of what should be private conduct; for example:

  • Laws against certain “hateful” forms of expression.
  • Detailed regulation of Internet content, under the rubric of McCain-Feingold and the Commerce Clause.
  • More and more bans on the use of tobacco in so-called public places, and even in private clubs and homes.
  • Further reliance on regulation rather than property rights and free markets to control products and activities that might affect the environment.
  • Further interference with the actions of institutions that are private and voluntary (e.g., a holding that the Catholic Church’s impending ban on the ordination of gay priests violates “equal protection”).
  • More government interventions that undermine the shreds of our barely civil and self-regulating society (e.g., approval of involuntary euthanasia, requiring employers to put “partners” on a par with heterosexual spouses).
  • The creation of ever more massive bureaucracies to deal with “problems” that the central government (at least) shouldn’t be involved in (e.g., the creation of a “disaster czar”).

I could pile it on, as could many of you. But the drift is obvious. God save the U.S. Supreme Court, for it may be our last line of defense against total statism.

A Challenge to My Senators

I’m about to send the following message to Senators Kay Bailey Hutchison and John Cornyn of Texas:

The Honorable Kay Bailey Hutchison/John Cornyn
United States Senate
Congress of the United States
Washington, D.C.

Dear Senator Hutchison/Cornyn:

I’m writing to you about Hurricane Rita, which may soon strike a devastating blow to Texas. As you know, President Bush has said that the federal government will pick up the tab for rebuilding in the aftermath of Hurricane Katrina. That tab is estimated to be about $200 billion, or around $700 per American. I hope that the $700 will be funded by cutting “pork” and other unnecessary government spending, as President Bush has suggested.

So, in spite of the prospect of grievous damage to homes and businesses in Texas — and in the expectation that persons who live near the Texas Gulf Coast will evacuate inland — I hope that Hurricane Rita leads to the following results:

1. The President should call for the uninsured damage to be defrayed by taxpayers, as before.

2. The cost of Rita will lead to additional cuts in unnecessary federal spending.

3. This will continue as additional hurricanes and other unavoidable natural disasters occur, depleting all unnecessary federal spending for FY2006, and perhaps beyond.

4. Congress, then facing the prospect of evolving into a sort of disaster-relief agency with the power to appropriate funds, will resist any further spending on disaster relief, by issuing the following joint resolution:

WHEREAS, the legislative power of the Congress of the United States is limited by Article I, Section 8, of the Constitution of the United States, and

WHEREAS, said Section does not contemplate the provision of disaster preparedness or relief, notwithstanding previous and erroneous interpretations of the Commerce, General Welfare, and Necessary and Proper Clauses of the Constitution, and

WHEREAS, Congress shall therefore no longer be a party to disaster-preparedness and disaster-relief programs that have the effect of encouraging and subsidizing the maintenance of residences and businesses in high-risk areas, and

WHEREAS, such encouragement imposes undue burdens on those persons who sensibly choose not to live in high-risk areas, and

WHEREAS, persons and businesses who choose to live and operate in high-risk areas should be responsible for protecting and insuring themselves and their property, and

WHEREAS, when persons and businesses do not take responsibility for themselves they make economically inefficient decisions that have ramifications for the well-being of all Americans, in addition to the direct costs of disaster preparedness and disaster relief, and

WHEREAS, the functions of disaster preparedness and relief can be provided more effectively and at lower cost through private insurance (if properly deregulated); other cooperative, market-based measures; and private charity, and

WHEREAS, government programs absorb funds that individuals and business could put to better use in such private endeavors, and

WHEREAS, the defense of Americans and their property from armed attacks is a legitimate function of the United States government, therefore

BE IT RESOLVED that from this day forward Congress shall not appropriate or make any other provision for disaster preparedness or disaster relief, except as necessary in the event of attacks upon the persons and/or property of American citizens by enemies of the United States, foreign or domestic.

Respectfully,
Liberty Corner

A Challenge to My U.S. Representative

The text of the following message is exactly as I sent it to my U.S. Representative. I was inspired to write this by N.Z. Bear’s porkbusting project. (I’ve since updated this post, and my message to Rep. McCaul, to get my arithmetic right. I guess I was stunned by the size of the “pork” bill.)

The Honorable Michael T. McCaul
Representative for the 10th District of Texas
United States Congress

Dear Mr. McCaul:

President Bush said in his nationally televised speech last Thursday night that the federal government will pick up most of the cost of rebuilding in the aftermath of Hurricane Katrina. Then, speaking at the White House on Friday afternoon, President Bush said that although rebuilding the Gulf Coast would be expensive, he was “confident we can handle it and our other priorities.” He said the government will “have to cut unnecessary spending” and should not raise taxes.

That leads me to three observations and a request. First, if the federal government is going to pick up the tab for Katrina (presumably the uninsured damage), that’s likely to set a bad precedent for the owners of homes and businesses in other high-risk areas, who will be tempted to skimp on insurance and let the rest of the nation insure them, through taxation. Second, if the federal budget includes $200 billion in unnecessary spending (a mighty low estimate, in my opinion), that $200 billion shouldn’t be in the budget in the first place. Third, neverthless, if the federal government is to provide something like $200 billion in aid to the victims of Hurricane Katrina, without raising taxes, members of Congress from all states must be willing to give up some of the “pork” that’s scheduled for their districts.

Here, then, is my request. Please identify — and volunteer for elimination from the FY2006 federal budget — enough “pork” from the 10th Congressional District of Texas to eliminate our district’s “fair share” of unnecessary spending. If you can’t find all of it in “pork,” find it in the federal government’s non-defense operations. If each district were to offer up $500 million in “pork” and other cuts, that would amount to $200 billion, plus some spare change. The pork shouldn’t be too hard to find. I went to the website for Citizens Against Government Waste (http://www.cagw.org/site/), scrolled to “Reports” in the navigation bar, clicked on “Pig Book,” then clicked on “2005,” and came to a page where I selected “Texas” and “all appropriations,” and entered “Austin” as my keyword. That produced a list of projects (for Austin alone) which garnered $13.252 million of federal funding in FY2005. The “pork” bill for the entire 10th District for FY2006 must be much larger than that. Surely the residents of the 10th District — most of whom are like me and do not benefit from “pork” — should be willing to surrender their “pork” and any other unnecessary government spending for the sake of hurricane victims.

Be a leader. Be a fiscally responsible Republican. Show your colleagues in Congress that your constituents are willing to cough up their “pork” — and more besides — to set an example for the rest of the country to follow.

Liberals and the Rule of Law

Liberals never quit. They defended Clinton because his “heart was in the right place” when it came to women, even though he was blatantly guilty of the anti-feminist sin of sexual predation. Republicans cried “rule of law,” but Democrats weren’t buying it, because Clinton — the sexual predator — was their man. In other words, liberals believe in neither the rule of law nor in any principle that can’t be sacrificed to their agenda of the moment, whether it’s keeping a law-breaking president in the White House or stealing an election by interpreting hanging chads.

Now comes Dahlia Lithwick of Slate to tell us why Judge John Roberts isn’t fit to be Chief Justice:

All afternoon, witnesses have been testifying back and forth about John Roberts. His supporters call him brilliant and kind and diligent and principled. His detractors mostly say he doesn’t get it. . . .

Back and forth the witnesses go—Roberts is great/Roberts doesn’t get it—never really acknowledging that they are not disagreeing; that it’s possible to be kind and smart and to believe in the rule of law and also not to get it.

Because the “it” in question has nothing to do with the rule of law. It’s about something I might call “law-plus”—the idea that the rule of law, in and of itself, has not always made this country fair. . . .

John Roberts isn’t a fan of law-plus. In fact, the unbounded nature of judicial power under law-plus is probably what drove him into the boiler room of the Reagan administration in the first place. Time and again he scolds the senators: If you want your statute to provide money damages, write it that way; if you want your legislation to implicate interstate commerce, write it that way. For Roberts, it is not the courts’ responsibility to make statutes effective. It is not even the courts’ responsibility to make the world fair. . . .

The problem isn’t whether John Roberts can be principled and fair on a thoroughly passive court. I’m sold on that. It’s whether a thoroughly passive court can ever truly be principled and fair.

In sum, the law be damned, just give us what we want and call it “fair.”

Rejection of the rule of law, which is what Lithwick and her ilk openly propound, means that no one knows what the rules are and that government can do anything it wants. If a judge says it’s right to take property away from homeowners and give it to developers, that’s “fair.” If a judge says that it’s right to discriminate against white persons because they aren’t black, that’s “fair.” Fair to whom? Fair to whomever liberals want to favor on any given day: Bill Clinton, developers, blacks upon whose votes they count, and on and on.

In the end, the liberal schema leaves all of us adrift, except for those in the inner circle, who are clued in from day to day as to what’s considered fair. The rest of us — black and white, rich and poor, rural and urban, religious and irreligious — must muddle along wondering what twist the law is going to take today. Will it follow the Constitution and laws made pursuant to the Constitution, or will it veer off in a new direction, favoring the liberal community’s cause du jour and leaving the rest of us in the lurch — without the education for which we are qualified, without the job for which we are qualified, and without the home in which we had hoped to spend our remaining years.

If you don’t like the law, get the legislature to change it, or get the legislature and the people to amend the constitutional meta-law. That’s too hard for liberals, who prefer a “fair” judge who will simply change the law without the bother of legislating and amending. And why is that? Because liberals know that in many instances they wouldn’t get what they want. And, guess what, that wouldn’t be “fair.”

You see, “fairness” is a shell game. And the owner of the game always wins. That’s the liberal agenda. To win, and screw anyone who gets in the way. “Fairness” is fair only to liberals, and that’s the way they want it.

So the next time a liberal tells you “it’s only fair,” ask “fair to whom?”

Senator Specter Abuses the Constitution

According to an article at The American Spectator (referring to a post at Mirror of Justice), Senator Arlen Specter of Pennsylvania (chairman of the Senate Judiciary Committee) asked this of Judge John Roberts:

When you talk about your personal views and, as they may relate to your own faith, would you say that your views are the same as those expressed by John Kennedy when he was a candidate, when he spoke to the Greater Houston Ministerial Association in September of 1960, quote, do not speak for my church on public matters and the church does not speak for me, close quote?

I believe that Senator Specter violated Article VI, Clause 3, of the U.S. Constitution, which states in part that

no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

What was the senator’s question, if not a religious test?

Know Thine Enemy

Today the 4th Circuit Court of Appeals issued this spot-on opinion in the case of José Padilla. Briefly, Padilla is the wannabe dirty bomber who was captured in Chicago three years ago after having fought against U.S. forces in Afghanistan.

Lyle Benniston, writing at SCOTUSblog, says:

The ruling . . . did not go as far as the Administration had asked. The Court did not rely upon the President’s claim that he has “inherent authority” as Commander in Chief to order the designation and detention of terrorist suspects. Rather, it relied only on the resolution Congress passed in the immediate aftermath of the terrorist attacks of Sept. 11, 2001, authorizing the President to respond. The Supreme Court similarly avoided the “inherent authority” claim when it upheld detention of citizens captured in foreign battle zones in its decision in Hamdi v. Rumsfeld — so far, the only other case of detention of a citizen named as an “enemy combatant.”

The Circuit Court commented: “Like Hamdi, Padilla associated with forces hostile to the United States in Afghanistan….And, like Hamdi, Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi….Because, like Hamdi, Padilla is an enemy combatant, and because his detention is no less necessary than was Hamdi’s in order to prevent his return to the battlefield, the President is authorized by the AUMF [Authorization for Use of Military Force Joint Resolution] to detain Padilla as a fundamental incident to the conduct of war.”

That the ruling did not go as far as the administration asked doesn’t alter the fact that the ruling was a victory for the administration, and for Americans. After all, Padilla’s counsel raised four arguments for Padilla’s release, all of which failed. Lawyers don’t lose when they lose some of their arguments, they lose only when they lose all of their arguments.

Judge J. Michael Lutting wrote for the three-judge panel. I applaud his ability (and that of his confreres) to see through the legal cant and get it right: An enemy of the United States is an enemy of the United States, even if he happens to be a U.S. citizen. To put it another way, not all non-citizens are enemies of the United States, but some citizens — not just Hamdi and Padilla — are enemies of the United States.

Roberts for Chief, Then What?

Very clever. . .

One suspects that the White House knew or surmised that Chief Justice Rehnquist was nearing the end when Judge Roberts was picked to succeed O’Connor. There may be a bit more rancor from the Left about Roberts, now that he’s moving up to CJ, but he’s still a very good bet for confirmation. (Unless a bigger skeleton than his opposition to “comparable worth” emerges from someone’s closest.)

Now the question is, who’s the pick for O’Connor’s seat? I stand by what I said here:

[W]ill Bush . . . nominate a limited-government conservative-libertarian like Janice Rogers Brown? If he doesn’t, Bush’s slide toward the accommodationist policies of his father will be confirmed. A sad waste of a Republican majority in Congress.

It’s showdown time. If Bush fails to nominate someone in the mold of Judge Brown I will withdraw everything I have ever said about the GOP being the last, best hope for the restoration of limited government.

My Labor Day Message

I posted this on Labor Day 2004. I stand by it.

Labor Day gives most workers a day off. That’s good because an extra day off now and then is a pause that refreshes. A longish trek to a park or a beach on a hot day with a car full of kids isn’t a refreshing way to spend Labor Day, but those workers who spend the day at home, perhaps reading a book and listening to music, will find their souls somewhat restored.

Now let us consider the significance of Labor Day as a holiday. According to Wikipedia:

The origins of Labor Day can be traced back to the Knights of Labor in the United States, and a parade organized by them at that time on September 5, 1882 in New York City. In 1884 another parade was held, and the Knights passed resolutions to make this an annual event. Other labour organizations (and there were many), but notably the affiliates of the International Workingmen’s Association who were seen as a hotbed of socialists and anarchists, favoured a May 1 holiday. With the event of Chicago’s Haymarket riots in early May of 1886, president Grover Cleveland believed that a May 1 holiday could become an opportunity to commemorate the riots. But fearing it may strengthen the socialist movement, he quickly moved in 1887 to support the position of the Knights of Labor and their date for Labor Day. The date was adopted in Canada in 1894 by the government of Prime Minister John Thompson, although the concept of a Labour Day actually originated with marches in both Toronto and Ottawa in 1872. On the other hand, socialist delegates in Paris in 1889 appointed May 1 as the official International Labour Day.

Labor Day has been celebrated on the first Monday in September in the United States and Canada since the 1880s. The September date has remained unchanged, even though the two governments were encouraged to adopt May 1 as Labor Day, the date celebrated by the majority of the world. Moving the holiday, in addition to violating U.S. tradition, could have been viewed as aligning U.S. labor movements with internationalist sympathies.

In summary (for those of you who didn’t grow up in the North), Labor Day is an invention of organized labor, and the historical roots of organized labor are socialistic.

Labor Day also serves to remind us of one of the “monuments” of FDR’s New Deal (quoting again from Wikipedia):

The National Labor Relations Act of 1935 (or Wagner Act) protects the rights of workers in the private sector of the United States to organize unions, to engage in collective bargaining over wages, hours, and terms and conditions of employment, and to take part in strikes and other forms of concerted activity in support of their demands….

In the first few years of the Wagner Act, however, many employers simply refused to recognize it as law. The United States Supreme Court had already struck down a number of other statutes passed during the New Deal on the grounds that Congress did not have the constitutional authority to enact them under its power to regulate interstate commerce. Most of the initial appellate court decisions reached the same conclusion, finding the Act unconstitutional and therefore unenforceable. It was not until the Supreme Court upheld the constitutionality of the statute in 1937 in National Labor Relations Board v. Jones & Laughlin Steel Corp. that the Wagner Act became law in practical terms as well.

Thus Labor Day, in its way, commemorates legislative and judicial infamy. The Wagner Act, at one stroke, deprived business owners of their property rights and thus discouraged investment and business formation; invalidated the freedom of employers to contract with employees on terms acceptable to employers as well as employees; caused artificially high wages and benefits that harmed American workers by making American industry less and less competitive with foreign industry; and set the stage for the use of the Commerce Clause as an excuse for the federal government’s interference in all aspects of business.

So, if you are a worker, enjoy your Labor Day holiday, but don’t thank organized labor or the New Deal for your material blessings.