BULLETIN
#6 Summer 1990

#6 Summer 1990 Page 1

WHAT IS OBJECTIVE LAW?
Harry Binswanger

[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.)]

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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 of TAFOL.

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 flag. The statute was enacted in reaction to the 1989 decision of the Supreme 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 to defend.

The analyses in the flag burning cases are based on the incorrect view that governmental 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.

Without exception, 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.

Rights arise 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.

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TREES' RIGHTS?

It has been said that when Congressional leftwingers cannot push liberal legislation 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.

This process 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.

The op-ed article cites a recent example of undermined standing principles. In Lujan 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 United States.")

But, as the article reminds us, liberals have gone much further in concocting ways 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 entire opinion:

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

Lawyers in New York have narrowly (and perhaps only temporarily) escaped a mandatory 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 Wachtler.

Judge Wachtler rejected the committee's recommendation. Instead, he announced that he would appoint another committee to encourage and oversee "voluntary" pro bono service. Judge Wachtler threatened,

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however, 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."

Chief Judge 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."

In Connecticut, 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 of Connecticut's 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 103, 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.

In February, 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 from Massachusetts.

LETTER TO THE EDITOR

The Newsletter [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 the Newsletter:

The notice entitled "A Modest Tax Break" in [a previous] Newsletter (Vol. I, Issue 4) encouraged the purchase of series 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 is the 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 market.

Would your newsletter care to address the broader issue of loaning money to governments

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whose sole ability to repay is the extent to which they can extort money from citizens? Would Miss Rand have advocated loaning money to the Soviet government? Is it moral to loan money to the government knowing what repayment entails?

Sincerely,
Michael Goode

EDITOR’S REPLY

The questions 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 major issues.

"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.

IN BRIEF

Comparable 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:

     Title VII 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
     are well

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     equipped to resolve intelligently or that we should lightly assume has been
     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
     legislative history to indicate Congress intended to abrogate fundamental
     economic 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.

In contrast, Michigan's neighbor to the north, Ontario, has enacted a law forcing certain 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 expect, 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 . . .

On January 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 Judge Davis, 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."

The California Commission on Judicial Performance rejected Judge Davis' permanent disability 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."
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Copyright © 1990. The Association for Objective Law. All rights reserved. Reproduction in any form without permission prohibited.