Archive for the ‘#constitutionalrights’ Tag

The Battle of Berkeley 4: Peace and Another Victory for the Deplorables   Leave a comment

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https://www.lewrockwell.com/2017/05/jack-kerwick/peaceful-victory-deplorables/

Image result for battle of berkeley riotIn February, the terrorist wing of the Democrat Party, the so-called “anti-fa” (“antifascist”), rioted at University of California at Berkeley in order to prevent Milo Yiannopoulos from delivering a speech.  The anti-American leftist thugs randomly assaulted innocents, threw Molotov cocktails, clashed with police, and smashed windows.  By the time it was all said and done, they had caused well over $100,000 worth of property damage.

This is now being regarded as the first Battle for Berkeley.  And the left won.

In March, a pro-Trump rally was held once more at the home of the so-called “free speech movement.”  It was here that the world was introduced to Kyle Chapman, aka, “the Based Stickman.”  The latter, along with several other patriots who were disgusted at the sight of rabid leftists beating up innocents while the police did absolutely nothing, came prepared to do battle. In spite of being outnumbered, Chapman and his brothers-in-arms protected innocents and held their ground.

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Physically speaking, the second Battle for Berkeley was a draw of sorts.  However, the Stickman instantly became an internet sensation, a meme that went viral. Psychologically speaking, this battle was a victory for the right, for the Stickman symbolized for countless numbers that if only American patriots would dare to stand up to leftist thugs, they could and would prevail.

On April 15, the Patriots held one more rally at Berkeley.  The “anti-fa” arrived in large numbers. They were armed with every weapon short of a gun.  The police, under the order of a leftist mayor, again stood down.

Only this time, the Patriots descended upon Berkeley in numbers dwarfing those that had appeared in the past. Though they had been disarmed by police, they had their helmets and shields.

And they were pissed.

When the anti-Americans charged, the Patriots fought back.  They inflicted a humiliating—though richly deserved—beating upon the terrorists before chasing them from their home, the heart of Leftism.

Footage of the Battle of Berkeley 3 is all over the internet.  Even the anti-American leftists had no option but to acknowledge that they lost.  The right achieved a glorious victory, both physically and psychologically.

When Ann Coulter ultimately backed out of the speech that she swore she would deliver at Berkeley on Thursday, April 27, many of those Patriots who traveled from across the country to support her were, at the very least, disappointed.  Coulter gave conflicting reasons for her reversal: (1) The Young Americans for Freedom (YAF), which was supposed to sponsor her, tucked its tail between its legs and ran; and (2) She didn’t trust Berkeley administrators and police to protect her.

Neither of these excuses passes the smell test.

Coulter is a woman of means. She could have easily arranged to speak on her own dime—as did many others, folks with far fewer resources than Ann possesses, who came to Berkeley on the 27th to speak in her place. As far as protection goes, she knew in advance that legions of patriots had planned on being in Berkeley to safeguard her and the right of all Americans to self-expression.

Coulter hinted that she may still swing by Berkeley to say “hello” to her supporters.  She didn’t even do that much.  She should have.

By all accounts, thankfully, no one was harmed.  Remarkably, there was no violence.

The “anti-fa” was present.  So too, though, were the Patriots—the Proud Boys, Bikers for Trump, Civil Defense Action, the Oath Keepers, the Three Percenters. And the latter were ready to defend themselves and innocents if the police had planned on following what had become their standard operating procedure.

Yet—surprise, surprise!—the police were proactive this time around.  They were actually acting like cops!  I think I know why.

While I have no proof of this, it is my suspicion that the mayor of Berkeley, an alleged member of BAMN (“By Any Means Necessary”) and an “anti-fa” sympathizer, had arranged for the police to stand down as long as he was confident that his ideological ilk would run roughshod over his political opponents.  In other words, the left knows and has known that the key to defeating the rest of us—the key to “fundamentally transforming” the culture, to borrow a term that Barack Obama infamously used—is to drive themselves into its collective consciousness.

To put it more exactly, leftists have known that through threats and exhibitions of violence, it can instill fear in the psyches of those who they want to either “transform” or otherwise silence.  So, for example, if enough Trump supporters and/or conservative Americans see their compatriots having the snot beaten out of them, leftists think, then the Deplorables will grow demoralized.

Thus, it is good politics, with all of the psychological warfare that this entails, for the rest of the country to witness Berkeley in flames and folks with MAGA hats and American flags getting battered.

But what happens when those Deplorables fight back?  What happens when those Deplorables not only fight back, but turn the tables on their assailants?  The video of the MAGA-hat and American flag sporting men, dressed as warriors, beating and running the anti-American left out of Berkeley, of all places, is terrible political theater from the militant left’s perspective.

Worse, it is the Deplorables who reaped the psychic gains.

Things being what they are, it is my guess that the mayor and his fellow ideologues decided that they didn’t want to risk another humiliating defeat. After all, they knew that the Deplorables had every intention of fighting back with all of the tenacity that they displayed the last time around—and maybe even more.

The Battle of Berkeley 4, though a cold confrontation, was another victory for patriots.  The Deplorables entered the belly of the beast, said what they came to say, and left unscathed.

To repeat, this was another psychological win.

As most of us learned when we were but children, when bullies are made to swallow a dose of their own medicine, they are more likely to whistle a different tune.

Some of the punks in Berkeley may be learning the hard way.  The terrorist left in general, on the other hand, is far from having learned its lesson.  But they will, for as long as they insist upon attacking innocents, the ranks of right-wingers who are willing and able to fight back will continue to swell.

Drain the FBI’s Swamp   4 comments

When President Trump fired FBI chief James Comey, I don’t think I was alone in giving a small cheer of support. Comey’s refusal to forward charges against Hillary Clinton almost made me vote for Donald Trump (I didn’t, it was just a momentary flirt with the idea), because I believe firmly that the elite of this country should face the same penalties as the rest of us and there are many ordinary people serving decades for mishandling classified information in less egregious ways than Hillary Clinton. The United States is not Europe where anyone with the right pedigree can buy their way to immunity. Former First Ladies who have bought their way up the political food chain should be held to the same standard as current presidents and low-level Navy operatives. If Hillary Clinton is allowed to skate, then Bradley Manning should be released and Edward Snowden should be given a full pardon … and a parade down Pennsylvania Avenue. While we’re at it, we should grant Julian Assange American citizenship and give him the key to Oval Office bathroom.

Image result for image of the fbi in a swampI’m not entirely kidding. Snowden and Assange are personal heroes of mine for telling the American people what our government is doing behind our backs.

Firing Comey looks a bit like a tiny step toward draining the DC swamp and I applaud that. Maybe it will inspire more such forays into therapeutic political land sculpting.

But more than just getting rid of a single swamp critter, the firing of James Comey provides a welcome chance to dethrone the FBI from its catbird’s seat in American politics and life. It’s not a Twitter fantasy. The FBI has a long record of both deceit and incompetence.

Five years ago, Americans learned that the FBI was teaching its agents that the bureau “has the ability to bend or suspend the law to impinge on the freedom of others.” That we didn’t know about it before doesn’t negate the fact that has been the FBI’s underlying culture since its creation.

J. Edgar Hoover ran the FBI from 1924 until his death in 1972. He built a revered agency that utterly intimidated officials in Washington. In 1945, President Truman wrote: “We want no Gestapo or secret police. FBI is tending in that direction. … This must stop.” Apparently, nobody listened to President Truman, because the bureau’s power soared after Congress passed the Internal Security Act of 1950. This authorized massive crackdowns on suspected “subversives”. Hoover compiled a list of more than 20,000 “potentially or actually dangerous” Americans who could be seized and locked away at the president’s command. “Congress secretly financed the creation of six of these (detention) camps in the 1950s,” noted Tim Weiner “Enemies: A History of the FBI” (2012).

From 1956 through 1971, the FBI’s counterintelligence programs (COINTELPRO) conducted thousands of covert operations to incite street warfare between violent groups, to get people fired, to smear innocent people by portraying them as government informants, and to cripple or destroy left-wing, black, communist, white racist and anti-war organizations. FBI agents also busied themselves forging “poison pen” letters to wreck activists’ marriages.

Image result for image of the fbi in a swampCOINTELPRO was exposed only after a handful of activists burglarized an FBI office in a Philadelphia suburb, seized FBI files, and leaked the damning documents to journalists. No FBI agents were jailed and few were fired stemming from this disclosure.

Maybe not surprisingly for a “bulletproof” agency, the FBI haughtiness was on display April 19, 1993, when its agents used armored vehicles to smash into the Branch Davidians’ sprawling compound near Waco, Texas. The tanks intentionally collapsed much of the building on top of the huddled residents. After the FBI pumped the building full of CS gas (banned for use on enemy soldiers by the Chemical Weapons Convention), a fire ignited that left 80 children, women and men dead. You don’t have to be a Branch Davidian supporter to find these actions deplorable.

The FBI swore it was blameless for the conflagration, but six years later, an investigation revealed that the FBI fired incendiary cartridges into the building before the blaze erupted. No FBI agents were penalized or prosecuted for their fatal assault against American civilians.

The FBI also lost track of a key informant at the heart of the cabal that detonated a truck bomb beneath the World Trade Center in 1993.

Before the 9/11 attacks, the FBI dismally failed to connect the dots on suspicious foreigners engaged in domestic aviation training. Though Congress had deluged the FBI with $1.7 billion to upgrade its computers, many FBI agents had old machines incapable of searching the Web or emailing photos. One FBI agent observed that the bureau ethos is that “real men don’t type. …The computer revolution just passed us by.”

The FBI’s pre-9/11 blunders “contributed to the United States becoming, in effect, a sanctuary for radical terrorists,” according to a 2002 congressional investigation.

In the late 1990s, the FBI Academy taught agents that subjects of investigations “have forfeited their right to the truth.” This doctrine helped fuel pervasive entrapment operations after 9/11.

Image result for image of the fbi in a swampTrevor Aaronson (The Terror Factory: Inside the FBI’s Manufactured War on Terrorism) estimated that only about 1% of the 500 people charged with international terrorism offenses in the decade after 9/11 were bona fide threats. Thirty times as many were induced by the FBI to behave in ways that prompted their arrest.

The bureau’s informant program extends across many facets of American society. It bankrolled an extremist right-wing New Jersey blogger and radio host for five years before his 2009 arrest for threatening federal judges. The FBI crime lab is infamous for its perpetual false testimony. It uses National Security Letters and other surveillance tools to illegally vacuum up Americans’ personal info. It has whitewashed every shooting by an FBI agent between 1993 and 2011.

The FBI’s power has rarely been effectively curbed by either Congress or federal courts. In 1971, House Majority Leader Hale Boggs declared that the bureau’s power terrified Capitol Hill:

Our very fear of speaking out (against the FBI) has watered the roots and hastened the growth of a vine of tyranny. … Our society … cannot survive a planned and programmed fear of its own government bureaus and agencies.

Boggs vindicated a 1924 American Civil Liberties Union report warning that the FBI had become “a secret police system of a political character” — a charge that supporters of both Hillary Clinton and Donald Trump would have alternatively cheered last year.

If Trump fired Comey to throttle an investigation into Trump administration criminality, that is an impeachable offense. I am not a Trump supporter and I don’t think Mike Pence could do a worse job. That doesn’t negate the fact that Comey’s fall provides an excellent opportunity to take the FBI off its pedestal and place it where it belongs — under the law.

No, I’m not saying disband it … at least not yet, but it is past time to cease venerating a federal agency whose abuses have perennially menaced Americans’ constitutional rights. If the Trump administration is truly serious about draining the swamp, this is a good place to start.

Wisdom of Originalist Interpretation   Leave a comment

Generally, we learn what is wise by watching what is stupid. This is as true in viewing the Supreme Court’s decisions as in almost everything else. The Supreme Court hardly has a history of making profoundly wise decisions. We all remember Dred Scott v Sanford (1857) and Plessy v Ferguson (1896), but hardly anyone remembers the that Civil War and Reconstruction occurred between and yet different justices ruled very similarly in both cases because they were politically influenced. We now look back on these two decisions and shake our heads, wondering how our constitutional republic could have allowed the practices the Supreme Court said were okay. There are many other SCOTUS cases where the decision was stupidly influenced by politics (or fear of the president) and later had to be reversed.

Image result for image of shouting fire in a crowded theaterIn a case that would define the limits of the 1st Amendment’s protection of the right to free speech, the Supreme Court decided the early 20th-century case of Schenck v. United States.

Shortly after the United States entered World War I, Congress passed the Espionage Act of 1917, meant to prohibit interference with military operations or recruitment, prevent insubordination in the military, and prevent the support of hostile enemies during wartime.

Charles Schenck was an important Philadelphia socialist, general secretary of the Socialist Party of America, and opposed to the United States’ entry into the war. As part of his efforts to counter the war effort, Schenck organized the distribution of 15,000 leaflets to prospective military draftees encouraging them to resist the draft.

The leaflet began with the heading, “Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!” It went on to quote Section 1 of the 13th Amendment, which outlaws slavery and involuntary servitude (unless you’re a felon, in which case it doesn’t apply to you). Schenck’s leaflet asserted that the draft amounted to involuntary servitude because “a conscripted citizen is forced to surrender his right as a citizen and become a subject.” The leaflet told conscripts that, “if you do not support you rights, you are helping to ‘deny or disparage rights’ which it is the solemn duty of all citizens and residents of the United States to retain.”

Schenck was arrested, and, among other charges, was indicted for “conspir[ing] to violate the Espionage Act … by causing and attempting to cause insubordination … and to obstruct the recruiting and enlistment service of the United States.” Schenck and fellow socialist Elizabeth Baer were both convicted following a jury trial and sentenced to six months in prison. They appealed appealed their convictions to the Supreme Court where they argued that their convictions—and Section Three of the Espionage Act of 1917, under which they were convicted—violated the 1st Amendment. They claimed that the Act had the effect of dissuading and outlawing protected speech about the war effort, thereby abridging the 1st Amendment’s protection of freedom of speech.

In a unanimous decision written by Justice Oliver Wendell Holmes, the Supreme Court upheld Schenck’s conviction and found that the Espionage Act did not violate Schenck’s 1st Amendment right to free speech. The Court determined that Schenck had, in fact, intended to undermine the draft, as the leaflets instructed recruits to resist the draft. Additionally, the Court found that attempts made by speech or writing could be punished just like other attempted crimes.

The Court found that context was the most important factor in alleged violation of the 1st Amendment. The Court said that, while “in many places and in ordinary times” the leaflet would have been protected, the circumstances of a nation at war allowed for greater restrictions on free speech.

Justice Holmes wrote, “When a nation is at war, many things that might be said in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

Holmes famously analogized the United States’ position in wartime to that of a crowded  theater:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This quote, while famous for its analogy, also gave the Court a pragmatic standard to use when faced with free speech challenges. The “clear and present danger” standard encouraged the use of a balancing test to question the state’s limitations on free speech on a case-by-case basis. If the Court found that there was a “clear and present danger” that the speech would produce a harm that Congress had forbidden, then the state would be justified in limiting that speech.

Only a year later, Holmes attempted to redefine the standard in Abrams v. United States (1919). Justice Holmes reversed his position and dissented, questioning the government’s ability to limit free speech. He didn’t believe the Court was applying the “clear and present danger” standard appropriately in the Abrams case, so he changed its phrasing, writing that a stricter standard should apply, that the state can only restrict and punish “speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

The “clear and present danger” standard would last for another 50 years, until the Court finally replaced it with the “imminent lawless action” test inn Brandenburg v. Ohio (1969). This new test stated that the state could only limit speech that incites imminent unlawful action. This standard is still applied by the Court today to free speech cases involving the advocacy of violence.

So what does this hundred year old case have to do with us in 2017? People are still being charged under the Espionage Act of 1917. Since the decision in Schenck v. United States, those who have been charged under the act include Socialist presidential candidate Eugene Debs, executed communists Julius and Ethel Rosenberg, and Pentagon Papers whistleblower Daniel Ellsberg. Most recently, both Bradley Manning and Edward Snowden have also been charged under the Act.

My base point here is that when people insist that the Supreme Court must be free to interpret the Constitution in light of their personal feelings about it rather than the words written in the Constitution, I balk because I know history and I know the Supreme Court justices have been wrong in the past and will be wrong in the future. That’s why I value originalists like Antonin Scalia and Clarence Thomas. They assuage flavor-of-the-decade politics to rule based on what the Constitution says rather than what’s trending on Twitter this week. And, that is what the Supreme Court was supposed to do originally. James Madison, the principle framer of the Constitution, objected strongly to it being subverted to other purposes and we should bear that in mind.

There is an appropriate way to change the rules upon which our nation is based. It’s called “amendment.” It’s not an easy process. It requires agreement by two-thirds of both houses of Congress and three-fourths of both legislative chambers in each state. This assures that there is broad consensus across the entire country that we feel it is time to make a change rather than that a tiny minority has decided to bludgeon everyone else in the direction the minority thinks they know is best.

Gays Need the Freedom to Discriminate | Jeffrey A. Tucker   3 comments

Gaining the right to be married is a win for liberty because it removes a barrier to free association. But how easily a movement for more freedom turns to the cause of taking away other freedoms!

Related imageFollowing the Supreme Court decision mandating legal same-sex marriage nationwide, the New York Times tells us that, “gay rights leaders have turned their sights to what they see as the next big battle: obtaining federal, state and local legal protections in employment, housing, commerce and other arenas.”

In other words, the state will erect new barriers to freedom of choice in place of the old ones that just came down!

To make the case against such laws, it ought to be enough to refer to the freedom to associate and the freedom to use your property as you see fit. These are fundamental principles of liberalism. A free society permits anything peaceful, and that includes the right to disassociate. Alas, such arguments seem dead on arrival today.

So let us dig a bit deeper to understand why anti-discrimination laws are not in the best interests of gay men and women, or anyone else. Preserving the ability to discriminate permits the market system to provide crucial information feedback to a community seeking to use its buying power to reward its friends and noncoercively, nonviolently punish those who do not share its values.

Ever more, consumers are making choices based on core values. Does this institution protect the environment, treat its workers fairly, support the right political causes? In order to make those choices — which is to say, in order to discriminate — consumers need information.

In the case of gay rights, consumers need to know who supports inclusion and who supports exclusion. Shutting down that information flow through anti-discrimination law robs people of crucial data to make intelligent buying decisions. Moreover, such laws remove the competitive pressure of businesses to prove (and improve) their commitment to community values, because all businesses are ostensibly bound by them.

A market that permits discrimination, even of the invidious sort, allows money and therefore success and profits to be directed toward those who think broadly, while denying money and profitability to those who do not. In this way, a free market nudges society toward ever more tolerant and inclusive attitudes. Money speaks far more persuasively than laws.

Notice that these proposed laws only pertain to the producer and not the consumer. But discrimination is a two-edged sword. The right can be exercised by those who do not like some groups, and it can be exercised by those groups against those who do not like them.

Both are necessary and serve an important social function. They represent peaceful ways of providing social and economic rewards to those who put aside biases in favor of inclusive decision making.

If I’m Catholic and want to support pro-Catholic businesses, I also need to know what businesses don’t like Catholics. If I’m Muslim and only want my dollars supporting my faith, I need to know who won’t serve Muslims (or who will put my dollars to bad use). If a law that prohibits business from refusing to serve or hire people based on religion, how am I supposed to know which businesses deserve my support?

It’s the same with many gay people. They don’t want to trade with companies that discriminate. To act out those values requires some knowledge of business behavior and, in turn, the freedom to discriminate. There is no gain for anyone by passing a universal law mandating only one way of doing business. Mandates drain the virtue out of good behavior and permit bad motivations to hide under the cover of law.

Here is an example from a recent experience. I was using AirBnB to find a place to stay for a friend. He needed a place for a full week, so $1,000 was at stake. The first potential provider I contacted hesitated and began to ask a series of questions that revolved around my friend’s country of origin, ethnicity, and religion. The rental owner was perfectly in his rights to do this. It is his home, and he faces no obligation to open it to all comers.

On the other hand, I found the questions annoying, even offensive. I decided that I didn’t want to do business with this person. I made a few more clicks, cancelled that query, and found another place within a few minutes. The new renter was overjoyed to take in my friend.

I was delighted for two reasons. First, my friend was going to stay at a home that truly wanted him there, and that’s important. Force is never a good basis for commercial relationships. Second, I was able to deny $1K to a man who was, at best, a risk averse and narrow thinker or, at worst, an outright bigot.

Declining to do business with him was my little protest, and it felt good. I wouldn’t want my friend staying with someone who didn’t really want him there, and I was happy not to see resources going toward someone whose values I distrusted.

In this transaction, I was able to provide a reward to the inclusive and broad-minded home owner. It really worked out too: the winning rental property turned out to be perfect for my friend.

This was only possible because the right to discriminate is protected in such transactions (for now). I like to think that the man who asked too many questions felt a bit of remorse after the fact (he lost a lot of money), and even perhaps is right now undergoing a reconsideration of his exclusionary attitudes. Through my own buyer decisions I was actually able to make a contribution toward improving cultural values.

What if anti-discrimination laws had pertained? The man would not have been allowed to ask about national origin, religion, and ethnicity. Presuming he kept his room on the open market, he would have been required under law to accept my bid, regardless of his own values.

As a result, my money would have gone to someone who didn’t have a high regard for my friend, my friend would have been denied crucial information about what he was getting into, and I would not be able to reward people for values I hold dear.

This is precisely why gay rights leaders should be for, not against, the right to discriminate. If you are seeking to create a more tolerant society, you need information that only a free society can provide.

You need to know who is ready to serve and hire gay men and women, so they can be rewarded for their liberality. You also need to know who is unwilling to hire and serve so that the loss part of profit-and-loss can be directed against ill-liberality. Potential employees and customers need to know how they are likely to be treated by a business. Potential new producers need to know about business opportunities in under-served niche markets.

If everyone is forced to serve and hire gays, society is denied important knowledge about who does and does not support enlightened thinking on this topic.

Consider the prototypical case of the baker who doesn’t want to make a wedding cake for a same-sex couple. He is within his rights. His loss of a potential customer base is his own loss. It is also the right of the couple to refuse to give this baker business. The money he would have otherwise made can be redirected towards a baker who is willing to do this. It is equally true that some people would rather trade with a baker who is against gay marriage, and they are within their rights as well.

Every act of discrimination, provided it is open and legal, provides a business opportunity to someone else.

How does all this work itself out in the long run? Commerce tends toward rewarding inclusion, broadness, and liberality. Tribal loyalties, ethnic and religious bigotries, and irrational prejudices are bad for business. The merchant class has been conventionally distrusted by tribalist leaders — from the ancient to the modern world — precisely because merchantcraft tends to break down barriers between groups.

We can see this in American history following the end of slavery. Blacks and whites were ever more integrated through commercial exchange, especially with the advance of transportation technology and rising incomes. This is why the racists turned increasingly toward the state to forbid it. Zoning laws, minimum wage regulation, mandatory segregation, and occupational licensing were all strategies used to keep the races separate even as the market was working toward integration.

The overwhelming tendency of markets is to bring people together, break down prejudices, and persuade people of the benefits of cooperation regardless of class, race, religion, sex/gender, or other arbitrary distinctions. The same is obviously and especially true of sexual orientation. It is the market that rewards people who put aside their biases and seek gains through trade.

This is why states devoted to racialist and hateful policies always resort to violence in control of the marketplace. Ludwig von Mises, himself Jewish and very much the victim of discrimination his entire life, explained that this was the basis for Nazi economic policy. The market was the target of the Nazis because market forces know no race, religion, or nationality.

“Many decades of intensive anti-Semitic propaganda,” Mises  wrote in 1944, “did not succeed in preventing German ‘Aryans’ from buying in shops owned by Jews, from consulting Jewish doctors and lawyers, and from reading books by Jewish authors.” So the racists turned to the totalitarian state — closing and confiscating Jewish business, turning out Jewish academics, and burning Jewish books — in order to severe the social and economic ties between races in Germany.

The biggest enemy of marginal and discriminated-against populations is and has always been the state. The best hope for promoting universal rights and a culture of tolerance is the market economy. The market is the greatest weapon ever devised against bigotry — but, in order to work properly, the market needs to signaling systems rooted in individuals’ freedom of choice to act on their values.

And, to be sure, the market can also provide an outlet for people who desire to push back for a different set of values, perhaps rooted in traditional religious concerns. Hobby Lobby, Chick-Fil-A, In-and-Out Burger, among many others, openly push their religious mission alongside their business, and their customer base is drawn to them for this reason. This is also a good thing. It is far better for these struggles to take place in the market (where choice rules) rather than through politics (where force does).

Trying to game that market by taking away consumer and producer choice harms everyone. Anti-discrimination laws will provide more choices at the expense of more informed choices. Such laws force bigotry underground, shut down opportunities to provide special rewards for tolerance, and disable the social learning process that leads to an ever more inclusive society.

New laws do not fast-track fairness and justice; they take away opportunities to make the world a better place one step at a time.

Source: Gays Need the Freedom to Discriminate | Jeffrey A. Tucker

Make the Bouquet… Or Else! | Roger Pilon   1 comment

Image result for image of a wedding bouquetTo see how little is left of one of our most important rights, the freedom of association, look no further than to today’s unanimous decision by the Washington State Supreme Court upholding a lower court’s ruling that florist Baronelle Stutzman was guilty of violating the Washington Law Against Discrimination (WLAD) when she declined, on religious grounds, to provide floral arrangements for one of her regular customer’s same-sex wedding. The lower court had found Stutzman personally liable and had awarded the plaintiffs permanent injunctive relief, actual monetary damages, attorneys’ fees, and costs.

This breathtaking part of the Supreme Court’s conclusion is worth quoting in full:

We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection. As applied in this case, the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious free exercise under either the First Amendment or article I, section 11 because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.

We have here yet another striking example of how modern state statutory anti-discrimination law has come to trump a host of federal constitutional rights, including speech, association, and religious free exercise. It’s not too much to say that the Constitution’s Faustian accommodation of slavery is today consuming the Constitution itself.

Such is the wrath of the crowd that wants our every act to be circumscribed by law—their law, of course.

Consider simply the freedom of association right. That liberty in a free society ensures the right of private parties to associate, as against third parties, and the right not to associate as well—that is, the right to discriminate for any reason, good or bad, or no reason at all. The exceptions at common law were for monopolies and common carriers. And if you held your business as “open to the public” you generally had to honor that, though you still could negotiate over services.

Slavery, of course, was a flat-out violation of freedom of association—indeed, it was the very essence of forced association. But Jim Crow was little better since it amounted to forced dis-association.  It was finally ended, legally, by the 1964 Civil Rights Act. But that Act prohibited not simply public but private discrimination as well in a range of contexts and on a range of grounds, both of which have expanded over the years. The prohibition of private discrimination may have been helpful in breaking the back of institutionalized racism in the South, but its legacy has brought us to today’s decision, where florists, bakers, caterers, and even religious organizations can be forced to participate in events that offend their religious beliefs.

Court’s haven’t yet compelled pastors to officiate at ceremonies that are inconsistent with their beliefs, but we have heard calls for eliminating the tax-exempt status of their institutions. Such is the wrath of the crowd that wants our every act to be circumscribed by law—their law, of course. And they’re prepared, as here, to force their association on unwilling parties even when there are plenty of other businesses anxious to serve them. As I concluded a Wall Street Journal piece on this subject a while ago:

No one enjoys the sting of discrimination or rejection. But neither does anyone like to be forced into uncomfortable situations, especially those that offend deeply held religious beliefs. In the end, who here is forcing whom? A society that cannot tolerate differing views—and respect the live-and-let-live principle—will not long be free.

Amen.

A version of this article was first published by The Cato Institute.

Source: Make the Bouquet… Or Else! | Roger Pilon

 

There are larger questions here than can be considered in a single blog post, though the author touches on it. How long before pastors are compelled to officiate at same-sex ceremonies in violation of the clear commands of the Bible the pastor claims to believe? Can a doctor be forced to provide an abortion when he is morally opposed to abortion? Must Muslim restaurants sell pork and alcohol … and why would this exemption be any different than baking a wedding cake or making a floral arrangement for a same-sex couple? Lela

Bakers Accused of Hate Get Emotional Day in Court | Kelsey Harkness   1 comment

The ongoing battle between gay rights and religious liberty escalated Thursday as husband-and-wife bakers in Oregon appealed their case after being ordered to pay $135,000 in damages for declining to make a cake for a same-sex wedding.

Image result for image of a wedding cakeEvery time we tried to make a constitutional argument it was stomped on, because it was administrative law.

“Everything up to this point has been administrative hearings,” Aaron Klein, co-owner with his wife Melissa of the since-closed bakery, told The Daily Signal afterward.

“Every time we tried to make a constitutional argument it was stomped on, because it was administrative law,” he said. “But now we’re finally in a courtroom where the Constitution and due process can be argued on a level we haven’t seen before. I’m looking forward to seeing the outcome.”

In court, an attorney for the Kleins again argued that designing and baking a cake to celebrate a same-sex marriage would violate the bakers’ Christian faith.

Both the Kleins and the same-sex couple who filed the original complaint against them were present inside the courtroom.

Afterward, while speaking to reporters, Melissa Klein had an emotional response.

“We lost everything,” she said. “I loved my shop, and losing it has been so hard for me and my family.”

In an exclusive telephone interview with The Daily Signal later, she added:

“That was a part of our life, and it was something that we thought was going to be passed down to our kids. It’s something that I miss every day still. I don’t think I’ll ever be able to get over it because it was our second home.”

A three-judge panel of the Oregon Court of Appeals heard oral arguments from both sides, with questions focused on issues such as:

  • Does Oregon have a “compelling reason” to grant the Kleins a religious exemption from the state’s antidiscrimination law?
  • Does a cake count as artistic expression protected by the First Amendment, and how do you differentiate between what constitutes art and what doesn’t?
  • What was the particular message involved in designing and making a cake for a same-sex wedding, and how is it understood by an observer?
  • To what extent may an artist be compelled to do something?

The Kleins used to run Sweet Cakes by Melissa, a family bakery they owned and operated in Gresham, Oregon. But after the Kleins declined in 2013 to make a cake for a same-sex couple’s wedding, citing their religious beliefs, they faced protests that eventually led them to shut down their bakery.

In July 2015, an administrative judge for the Oregon Bureau of Labor and Industries ruled that the Kleins had discriminated against a lesbian couple, Rachel and Laurel Bowman-Cryer, on the basis of their sexual orientation. The judge ordered the Kleins to pay the $135,000 for physical, emotional, and mental damages.

Under Oregon law, it is illegal for businesses to refuse service based on a customer’s sexual orientation, as well as race, gender, and other characteristics.

The Kleins maintained that they did not discriminate, but only declined to make the cake because of their religious beliefs about marriage. Designing and baking a custom cake for a same-sex wedding, they said, would violate their Christian faith.

The Kleins appealed to the Oregon Court of Appeals on the basis of their constitutional rights to religious freedom, free speech, and due process.

The three appeals judges also pursued these lines of questioning:

  • Was the award of damages—the $135,000 the Kleins were ordered to pay—out of line with other cases before the Oregon Bureau of Labor and Industries?
  • Was it reasonable for that state agency to extend the damages through more than two years after the alleged discrimination actually occurred?
  • Did Bureau of Labor and Industries Commissioner Brad Avakian prejudge the case and in doing so strip the Kleins of their right to due process?
  • How is sexual orientation different from race as a personal characteristic?

Each side had equal time to make their case and the Kleins, as plaintiffs, got an additional five minutes for a rebuttal. The oral arguments were live-streamed, and may be watched in full here.

“The government should never force someone to violate their conscience or their beliefs,” Kelly Shackelford, president and CEO of First Liberty Institute, a religious freedom group that represents the Kleins, said in a press statement, adding:

The administrative judge who issued the final ruling also is employed by the state agency.

“In a diverse and pluralistic society, people of good will should be able to peacefully coexist with different beliefs. We hope the court will uphold the Kleins’ rights to free speech and religious liberty.”

But Charlie Burr, a spokesman for the Oregon Bureau of Labor and Industries, whose lawyers represent the Bowman-Cryers,  said:

“The facts of this case clearly demonstrate that the Kleins unlawfully discriminated against a same-sex couple when they refused service based on sexual orientation.”

Since the case began in 2013, the Kleins have argued the cards were stacked against them.

Lawyers for the Bureau of Labor and Industries pursued the charges against the Kleins on behalf of the lesbian couple, who went on to marry.

Avakian, the agency official, made multiple public comments criticizing them before any rulings, the Kleins said.

The administrative judge who issued the final ruling also is employed by the state agency.

Besides ordering the Kleins to pay $135,000, Avakian ordered the former bakery owners to “cease and desist” from speaking publicly about not wanting to bake cakes for same-sex weddings based on their Christian beliefs.

Both parties have said the case has taken a heavy toll on their families. Aaron and Melissa Klein, who have five children, say they continue to face hurtful attacks from liberal activists.

According to an article the Bowman-Cryers wrote for The Advocate, a publication focused on LGBT issues, they are foster parents for two “high-needs” girls.

“Part of the reason we decided to get married in the first place was to provide stability for our daughters,” they wrote, adding:

Before we became engaged, we became foster parents for two very high-needs girls after their mother, a close friend of ours, died suddenly. Lizzy, now 9, has cerebral palsy, autism, and a chromosomal disorder that causes developmental delays. Anastasia, now 7, has Asperger’s and stopped speaking when her mother died.

While the case wound its way through the courts, we won full adoptive custody of Lizzy and Anastasia, and they are the light of our lives.

The appeals judges are not expected to rule for several months. If they rule against the Kleins, the couple’s next step would be appealing to the Oregon Supreme Court.

Republished from the Daily Signal.

Source: Bakers Accused of Hate Get Emotional Day in Court | Kelsey Harkness

 

I would point out that even if the Kleins win their case in court, they have still lost as this has taken their businesses and more of less bankrupted them. I would also point out because the article does — this lesbian couple were repeat customers. Melissa Klein had served them before when the service was not a wedding cake. Lela

Must a Jew Bake a Nazi Cake? | Jeffrey A. Tucker   3 comments

At the first-ever nationally televised debate between candidates for the Libertarian Party, the subject turned to a fundamental issue: the freedom not to associate. The subject concerned anti-discrimination law, particularly as it affects religion.

Image result for image of a nazi cakeGary Johnson was asked whether he, as president, would retain laws that prohibit discrimination based on religion. He said he would, especially given the current political climate in this country. There’s so much anger out there, he said, that he would be concerned about Muslims being denied access to basic utilities, for example.

Opponent Austin Petersen immediately seized on this compromise of principle. People must have the freedom to associate or disassociate based on whatever criterion. If they do not, he said, a Jewish baker would be forced to bake a cake for Nazis. Johnson agreed that non-discrimination would imply exactly that.

It was the best moment of the debate, and it sparked a thousand Reddit and Facebook discussions.

Who is right?

One objection is that this hypothetical is wholly unlikely in any case. Why would a Nazi demand such a thing from a Jew? If the Jewish baker really refused a Nazi, could he actually expect to be prosecuted for doing so?

However unlikely this scenario would be in the United States today, it is not entirely ahistorical. In the early years of the rise of the Nazis, party members demanded boycotts of Jewish businesses. This was part of their propaganda to whip up the public into scapegoating Jews for all the sufferings of the German people. Over time, public antagonism intensified to more direct forms of attacks and exclusions, from lootings, pogroms, ghettoization, concentration camps, and finally gas chambers.

A Slippery Slope?

Supporters of anti-discrimination law cite this as a case in point. If you let people refuse service based on a religious criterion (or race, sex, disability, and so on) you create a slippery slope. What starts as a bigoted choice ends in more violent modes of exclusion. Yes, this can lead to weird results such as forbidding a black-owned hotel from barring a Klan member, and a Jewish baker forced to service to a Nazi based on religion. But this is a small price to pay, they say, for a more generalized atmosphere of tolerance.

Let’s consult the great economist Ludwig von Mises, a Jew himself, who was actually present in interwar Vienna and personally affected by the rise of anti-Semitism. It kept him from obtaining a position at the city’s great university, and it eventually drove him out of his beloved Austria. Eventually arriving in the United States, he wrote what might be considered the most anti-Nazi book ever: Omnipotent Government (1944). It opposed Nazi racism and anti-Semitism but also the entire Nazi economic policy that itself was rooted in a form of legal discrimination of some producers over others.

Choice and Coercion

Where did Mises stand on the issue of discrimination? He distinguished two kinds: that extending from choice and that imposed by law. He favored the former and opposed the latter. He went even further. He said that a policy that forces people against their will creates the very conditions that lead to legal discrimination. In his view, even speaking as someone victimized by invidious discrimination, it is better to retain freedom than build a bureaucracy that overrides human choice.

“In an unhampered market society there is no legal discrimination against anybody,” he wrote. “Everyone has the right to obtain the place within the social system in which he can successfully work and make a living. The consumer is free to discriminate, provided that he is ready to pay the cost.”

What might this principle imply?

A Czech or a Pole may prefer to buy at higher cost in a shop owned by a Slav instead of buying cheaper and better in a shop owned by a German. An anti-Semite may forego being cured of an ugly disease by the employment of the ‘Jewish’ drug Salvarsan and have recourse to a less efficacious remedy. In this arbitrary power consists what economists call consumer’s sovereignty.

These choices are up to the consumer, and, presumably, the producer too.

In a world in which people have grasped the meaning of a market society, and therefore advocate a consumer’s policy, there is no legal discrimination against Jews. Whoever dislikes the Jews may in such a world avoid patronizing Jewish shopkeepers, doctors, and lawyers.

And yet, if you have a social movement that is just dead-set against a certain group, and pushes a strategy of boycotts and exclusions, does it eventually end in harming people in devastating ways? So long as markets are working, Mises says the answer is no.

Many decades of intensive anti-Semitic propaganda did not succeed in preventing German “Aryans” from buying in shops owned by Jews, from consulting Jewish doctors and lawyers, and from reading books by Jewish authors. They did not patronize the Jews unawares—’Aryan’ competitors were careful to tell them again and again that these people were Jews. Whoever wanted to get rid of his Jewish competitors could not rely on an alleged hatred of Jews; he was under the necessity of asking for legal discrimination against them.

Mises is arguing, in other words, that voluntary discrimination tends not to create permanent disabilities for groups. It might be wrong. It might be ugly. It might be intended to create harm. But so long as the market is working, exclusion does not work over the long run. The benefits of the division of labor are too great, and the costs of pervasive discrimination are too high, to make it worth it.

As Mises wrote elsewhere:

The market does not directly prevent anybody from arbitrarily inflicting harm on his fellow citizens; it only puts a penalty upon such conduct. The shopkeeper is free to be rude to his customers provided he is ready to bear the consequences. The consumers are free to boycott a purveyor provided they are ready to pay the costs. What impels every man to the utmost exertion in the service of his fellow men and curbs innate tendencies toward arbitrariness and malice is, in the market, not compulsion and coercion on the part of gardeess, hangmen, and penal courts; it is self-interest.

Power Will Be Used

What’s more, argues Mises, society needs a market society that includes a full range of freedom to choose precisely to prevent political violence against groups. Nazi economic policy punished importers against domestic producers, large stores against shopkeepers, large-scale industry against startups, and so on. The machinery was already in place legally to punish Jewish businesses against non-Jewish businesses.

Sacrificing principle for the sake of marginalized groups is short-sighted. If you accept the infringement of human rights as an acceptable political weapon, that weapon will eventually be turned on the very people you want to help. As Dan Sanchez has written, “Authoritarian restriction is a game much better suited for the mighty than for the marginalized.”

Commerce has a tendency to break down barriers, not create them. In fact, this is why Jim Crow laws came into existence, to interrupt the integrationist tendencies of the marketplace. Here is the hidden history of a range of government interventions, from zoning to labor laws to even the welfare state itself. The ruling class has always resented and resisted the market’s tendency to break down entrenched status and gradually erode tribal bias.

Indeed, commerce is the greatest fighter against bigotry and hate that humankind has ever seen. And it is precisely for this reason that a movement rooted in hate must necessarily turn to politics to get its way.

The real danger is not human choice but a regime that overrides it. The market is rooted in choice, which also means the right to discriminate. But so long as the state stays out of it, the discriminatory intent can’t last.

The freedom to choose implies the freedom to decline any particular choice on any grounds.

What about the Johnson scenario of a public utility that denies service to a Muslim community? One can easily imagine a private power generation company using that as an opportunity for profit.

As for the Nazis, they will just have to find someone else to bake their cakes.

Source: Must a Jew Bake a Nazi Cake? | Jeffrey A. Tucker

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