IS OBJECTIVE LAW? (See issue #7 for entire article)
#6 Summer 1990
l WHY WE CAN BURN THE FLAG
l TREES' RIGHTS?
l MANDATORY PRO BONO UPDATE
l UPDATE ON PROPOSITION 103 AND ITS ILK
l LETTER TO THE EDITOR
l EDITOR’S REPLY
l IN BRIEF
Worth North and South of the “SOO”
Job Upsets You . . .
1990 Page 1
WHAT IS OBJECTIVE LAW?
[Web editors note: This article was originally published in two
parts with part 1 in this Bulletin #6. Part 1 was repeated in Bulletin
#7 together with the concluding part 2. For clarity this copy of
part 1 is omitted---see Bulletin #7 for the entire article. (A
later version of this article was published in a print version
by The Intellectual Activist.)]
1990 Page 2
WHY WE CAN BURN THE FLAG
The following is an op-ed article written by a TAFOL officer and
circulated to various newspapers by The Ayn Rand Institute on behalf
On May 14, 1990, the United States Supreme Court [heard] argument
in two flag burning cases: United States v. Haggerty and United
States v. Eichman. Both cases involve violations of a new
federal statute making it a crime to destroy or deface an American
The statute was enacted in reaction to the 1989 decision of the
Court in Texas v. Johnson, in which a similar state statute was
held to violate the First Amendment right to free speech. The language
of the federal statute was carefully crafted in hopes of circumventing
the Court's decision in Johnson.
The flag burning cases are widely regarded as a classic face-off
between the political right and the political left, whose positions
are seen as diametrically opposed. In fact, their positions are
fundamentally indistinguishable. Both are wrong; both reveal premises
which are the antithesis of the basic American values they purport
in the flag burning cases are based on the incorrect view that
power is the norm, and rights the exceptions.
Today, courts generally apply a two-step process in considering
whether the government may prohibit a particular action by an individual
or whether the action is fully protected by a right. First, the
individual must convince the court that his action falls within
the ambit of a right appearing on a constitutional checklist. But
even if the action fits within a protected category, such as freedom
of religion, the individual is not necessarily safe. The court
will uphold the government's prohibition of the conduct, in disregard
of the right, if the government can show that it has a sufficient "interest" in
regulating the conduct.
from the Department of Justice to the Center for Constitutional
Rights, the parties and interested others in
the flag burning cases all seem to agree that this analysis is
just dandy. The only dispute is over what level of "interest" the
government must demonstrate, and whether it has been demonstrated.
(Correction: the Department of Justice does argue additionally
that flag burning, like obscenity, is outside the protection of
the First Amendment entirely.)
In the flag burning cases, it so happens, the conduct has thus
far been held by the courts to fit within an enumerated category
(free speech), and the reason offered by the government for overriding
the right has been considered insufficient. In other words: We
can burn the flag because that activity is on the list of permitted
conduct, and there doesn't seem to be a good enough reason for
the government to forbid it.
This is not the way rights work; it is not what the founders of
this country intended, and it is not what the flag represents.
out of the nature of man; as Ayn Rand has explained, they are "conditions of existence required by man's nature
for his proper survival." They are not gifts of the state,
or permissions, to be withdrawn at any time. Indeed, the only proper
purpose of government is to protect the rights of individuals from
those who seek to
violate them by the initiation of physical force. Ayn Rand puts
it as follows: "[I]t cannot be repeated too often that the
Constitution is a limitation on the government, not on private
individuals---that it does not prescribe the conduct of private
individuals, only the conduct of the government---that it is not
a charter for government power, but a charter of the citizens'
protection against the government."
The flag is an important symbol of the system of government embodying
these principles, and a showing of contempt for it is despicable.
But the destruction of the flag, if the flag belongs to the person
burning it and the conduct endangers nobody, is not an initiation
of force or a violation of anyone's rights, and nobody seems to
be claiming it is. On the contrary, any statute forbidding flag
burning is an initiation of force and a violation of an individual
right: the right to property, which includes the right to use the
property to express any ideas the owner wishes.
Any other view of rights is terribly dangerous. The view that
you are not free unless the particular action you wish to take
is on an approved list, that you are not free to act unless the
government tells you that you may, leaves us all defenseless against
those who wish to dictate what we can do, what we cannot do and
what we must do---whether it be someone who has ascertained that
pornography is outside the protection of any listed right, or someone
who has determined that cigarette companies should not be able
to advertise, or someone who wishes us to raise our hands in salute
to a swastika, or hammer and sickle.
#6 Summer 1990 Page 3
It has been
said that when Congressional leftwingers cannot push liberal
through Congress, they "compromise" by
making the proposed legislation more vague. Then, when cases are
brought to interpret the vague law, activist judges complete the
liberal lawmakers' work. (See "Up for Grabs" in TAFOL's
Spring 1989 issue for Judge Alex Kozinski's view on this topic.)
Thus, as The Wall Street Journal pointed out in a recent op-ed
piece, a new "Clean Air" bill refers to "clean air" and "clean
water" without clearly defining those terms.
Congress will count on environmentalists to bring cases in the
courts to determine
what "clean" means.
has been helped along by the lowering of judicial standards with
respect to the question of "standing," i.e.,
who may sue in court on a particular issue. Article III of the
United States Constitution grants jurisdiction to the federal courts
only over "Cases" and "Controversies." As The
Wall Street Journal states: "Until recently, everyone understood
this to mean that only people with direct and particular harm can
sue." A person cannot maintain a suit simply because he is
interested in knowing an answer to some question where there has
been no injury, and no injury is threatened to him. The courts
are not forums for philosophical discussion or the advancement
of social programs. They are forums for the redress or prevention
of specific violations of rights. In this way, the courts make as
little law as possible, by making law only when necessary, i.e.,
only when there is an actual dispute involving a violation of rights.
article cites a recent example of undermined standing principles.
v. National Wildlife Federation, an environmental
group sued the Interior Department to block deregulation and development
of federal land comprising more than seven percent of the country's
land mass. The group charged technical deficiencies in environmental
impact statements. In order to establish standing to sue, the environmental
group relied on the complaint of its member Peggy Peterson, who
asserted that part of the plan threatened her "recreational
use and aesthetic enjoyment of federal lands" in the vicinity
of "a two million-acre parcel in Wyoming where 4,455 acres
would be opened to mining." (Of course, the issue was confused
further here by the fact that the lands are owned by the government,
but the question of standing arises in litigation involving private
property as well.) The Federal Court of Appeals allowed the case
to proceed, and for years, the deregulation of the land was enjoined.
(During argument before the Supreme Court, Justice Scalia questioned
the attorney for the environmental group as to whether they could
sue if they only complained about "allowing mining in the
But, as the
article reminds us, liberals have gone much further in concocting
to get into court. Back in 1972, a classic law
review article---"Should Trees Have Standing? Toward Legal
Rights for Natural Objects"---proposed "the wilderness
itself as the plaintiff." Although such suggestions
have, to some extent, been taken seriously and had negative effects
on the law, they
do have their light side. A Michigan court once affirmed a decision
rejecting a suit for damage to a tree with the following as the
We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest,
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three
We must uphold the court's decree.
MANDATORY PRO BONO UPDATE
New York have narrowly (and perhaps only temporarily) escaped
pro bono rule. Despite acknowledged vigorous
opposition from an "overwhelming majority" of the organized
bar, the Marrero Committee appointed by Court of Appeals Chief
Judge Sol Wachtler recommended adoption of a mandatory pro bono
rule. The proposed rule would have required New York's 88,000 lawyers
to perform a minimum of 40 hours of unpaid legal service for the
indigent every two years. The rule required the approval of Judge
rejected the committee's recommendation. Instead, he announced
would appoint another committee to encourage
and oversee "voluntary" pro bono service. Judge Wachtler
1990 Page 4
that if within two years, voluntary service "does
not meet the desperate need [for legal services], I will propose
. . . a rule be promulgated mandating pro bono services for the
poor as recommended by the Marrero Committee."
Wachtler thanked the Marrero Committee in these words: "Their
proposal has served as a much needed catalyst for public discourse---nothing
clarifies the mind
like the sight of the gallows."
the legislature has postponed consideration of its mandatory
pro bono provision in order to give the
bar association time to show, through a survey of its
membership, that lawyers are already contributing their time.
In an interview,
Connecticut's State Representative Thomas D. Ritter, the author
provision, was asked: "Is
your motive for introducing a bill on mandatory pro bono to help
meet the need for civil legal services for the indigent, or is
it to require lawyers to do what you believe they should do as
part of their professional responsibility?" He answered: "It's
both. Certainly there is a need out there. The young attorneys
are the ones who disappoint me the most. There's a whole new generation
of lawyers out there who don't seem to have the values that some
of the older lawyers have. The children of the Sixties had a much
different outlook when they were going to law school."
UPDATE ON PROPOSITION 103 AND ITS ILK
In past issues
of the Newsletter, we have reported on California's Proposition
which required that rates for automobile insurance
be reduced in that state. Now, in New Jersey, the state-operated
pool for high-risk drivers (the Joint Underwriting Association,
or "JUA") was the subject of a recently enacted state
bill. The purpose of the bill was to alleviate the $3.1 billion
indebtedness of the JUA. Apparently, prior to the recent bill's
enactment, there had been an assessment of $222 per car per year
designed to keep the pool from bankruptcy. The newly enacted bill
shifts some of this cost to insurance companies, who will pay $1.4
billion of the debt, and to professions that "benefit" from
auto accidents! Doctors, lawyers and body repair shops will each
pay a $100 license fee to help amortize the JUA debt.
Regarding California's Proposition 103, it was recently reported
that because of the Proposition, auto insurance premiums in Los
Angeles County will be cut by more than 20%, but that they will
be raised in all but two other counties.
Pennsylvania passed a law requiring insurers to reduce rates
from 10% to 22%.
In response, Aetna Life & Casualty Company,
the fifth largest automobile insurer in that state, is seeking
to withdraw, and the insurance
commissioner is trying to prevent it. The company has
also filed suit challenging the constitutionality of two laws barring its withdrawal
LETTER TO THE EDITOR
[Bulletin] received the following letter to the editor in response
to an "In Brief" entitled "A
Modest Tax Break" that appeared in the Winter 1989 issue of
entitled "A Modest Tax Break" in
[a previous] Newsletter (Vol. I, Issue 4) encouraged the purchase
EE United States savings bonds in order to obtain tax breaks if
the proceeds were spent for higher education. And Miss Rand was
quoted as supporting programs of tax credits for higher education
in an article she did for The Ayn Rand Letter.
I don't recall
her ever encouraging people to buy government IOUs, and that
whole point of the legislation you were lauding.
It is simply another scheme to finance government deficit spending.
These bonds can only be repaid to investors if the State is successful
in confiscating the incomes of our children, and their children.
Over a fourth of all Federal taxes now go to "debt service," and
this is certain to increase. With a large percentage of Treasury
notes now being sold to foreign investors, American workers can
look forward to paying a large chunk of their taxes to Japanese
millionaires who pay no tax on the income they take from the U.S.
At the same time, we are being told by the government that we must
work harder and more efficiently in order to compete in the world
newsletter care to address the broader issue of loaning money
1990 Page 5
ability to repay is the extent to which they can extort money
from citizens? Would Miss Rand have advocated
to the Soviet government? Is it moral to loan money to the
government knowing what repayment entails?
raised in your letter are interesting and complex. There is insufficient
space to respond to each of
them. However, we shall address what we have identified as the
"A Modest Tax Break" was
intended to make known the
existence of a tax break which an individual should feel
free to utilize if it is advantageous for him to do so, and which,
more importantly, encourages private spending for education. Whether
the particular form of the tax benefit is more or less harmful
than a tax credit would be in today's environment of offsetting "revenue
losers" against "revenue raisers" is difficult to
say. A credit would more likely than not be offset by a tax raising
measure. Consequently, some other taxpayer would foot the bill
for the credit, just as some other taxpayer will pay off the bond
debt. However, because either measure encourages private spending
for education, hopefully net government spending is reduced.
Lastly, it should not be assumed that government bonds are necessarily
an inappropriate means of government finance. In a rational context,
a government might incur bond debt that it repays, for example,
with the proceeds of a lottery.
Worth North and South of the “SOO”
In the latter
part of 1989, the Sixth Circuit Court of Appeals held that claims
made in a class action brought by female employees
of the State of Michigan who work in certain job classifications
were not actionable. The employees claimed that the State of Michigan
had discriminated against them in violation of Title VII of the
Civil Rights Act of 1964 because the system Michigan utilized to
classify jobs and set wage rates resulted in concentrating women
in lower paying jobs, and in sex-based differences in pay for jobs
with "equal" benchmark point totals. Typically, a benchmark
system assigns points to specific jobs based on various factors
such as knowledge required, physical effort required, responsibility
assumed, work environment, etc. If the jobs of newspaper librarian
and truck loader are evaluated to have equal points, the theory
goes, they should command equal wages.
The Sixth Circuit in Auto
Workers v. State of Michigan, 886 F.2d
766 (1989), however, determined that the employees who brought
suit could not sue under Title VII
because they had failed to show that the "disparate" pay
was the result of a discriminatory motive on the part of the State
of Michigan. In its decision the court bowed to market processes
as the proper determinant of wage rates
(in the absence of "discriminatory" intent). The opinion
is notable for its free market language, an oddity in this
area of the law. The court stated:
is not a substitute for the free market, which historically determines
labor rates. Nor is the task of assigning comparative
worth "the sort that judges
1990 Page 6
to resolve intelligently or that we should lightly assume has
given us to resolve by Title VII or the Constitution." Am.
Nurses II, 788 F. 2d at 720.
As the Ninth Circuit stated, "[w]e
find nothing in the language of Title VII or its
to indicate Congress intended to abrogate fundamental
principles such as supply and demand or to prevent employers from
competing in the labor market." AFSCME,
770 E2d at 1407 Mere
failure to rectify
traditional wage disparities that exist in the
marketplace between predominantly
male and predominantly female
jobs is not actionable.
Michigan's neighbor to the north, Ontario, has enacted a law
private businesses to adopt "equal pay
for equal work" plans. Under Ontario's law, businesses with
more than 500 workers were required to submit pay-equity plans
by January 1, 1990. However, according to The Wall Street Journal,
determining the "worth" of dissimilar jobs is so daunting
that the provincial government itself failed to meet the January
1 deadline for posting a plan, as did about 20% of private employers
subject to the law.
In some instances
where plans have been promulgated, the results, as one might
have been absurd. For example, twelve of the
female job groups at The Toronto Sun turned out to make more than
the comparable male groups---and while the law requires that women
get raises if their "comparable" jobs are found to be "underpaid," it
does not require that "underpaid" men get raises. In
addition, at the University of Toronto, pay-equity changes will
leave some accountants earning less than the clerks they supervise.
These examples underscore the fact that Ontario's legislators would
do well to heed the Sixth Circuit's remarks and conclude that real
pay-equity (pay according to worth) is decided only by the free
market, not by decree.
If Your Job Upsets You . . .
1, 1989, Joseph K Davis resigned his position as judge of the
Municipal Court of San Diego, California. However,
he had actually stopped working a year earlier when he applied
for a lifetime disability pension, claiming that he had developed "stage
fright" about a year after becoming a judge. His stage fright,
which was complicated by depression and anxiety, interfered with
his ability to perform routine judicial tasks.
A fellow judge,
Nicholas Kasimatis, who became a judge about three years after
stated, "Soon after I came on bench,
it was apparent to me that he had problems. He didn't show up for
work a lot. When he did, he arrived late and left early."
Commission on Judicial Performance rejected Judge Davis' permanent
pension application on grounds that
there was a possibility he could be successfully treated. Judge
Davis sued. The San Diego Superior Court ruled in his favor, holding
that the Commission had acted "capriciously and arbitrarily." Rather
than appeal, the Commission settled. By the terms of the settlement,
Judge Davis received a lifetime disability pension currently worth
$56,002 a year. In return, the Superior Court agreed to strike
the finding that the Commission acted "capriciously and arbitrarily." According
to Judge Kasimatis," [The case] is an example of a special
situation where a man who probably[!] never should have been a
judge was appointed and now the system says because he was appointed---when
he shouldn't have been---he's eligible to get disability."
Copyright © 1990.
The Association for Objective Law. All rights reserved. Reproduction
in any form without permission prohibited.