Bake the Cake…?! Property & Discrimination

“It’s a violation of religious freedom!”

“How dare you discriminate against gay people; that’s a violation of their civil rights!”

So which is it? Is forcing the cake baker to bake a cake for a gay wedding a violation of their religious rights? Or is refusing to serve a gay couple a violation of their civil rights? Which is the real issue?

Neither.

I’m speaking, of course, of the recent case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, a class action suit challenging business discrimination of services for gay events (or gay people more generally).

Let me break this down as concisely as I can in a series of points that will, I hope, give a clear picture of what the real issue is here, and the implications.

  1. First, is this a religious liberties issue? Yes and no. The first amendment of the Constitution contains five major protections: speech, religion, press, assembly and petition. Regarding religion, there are two clauses. The first states that government may not infringe on the “free exercise of religion,” and the second bars the government from “establishing” a religion. So it is my contention that the first amendment alone is not enough to argue this case. The real argument carries far more leverage. The 9th amendment alone does a better job.

 

  1. Is this a civil rights issue? Well, again, I will refrain from answering this directly; stick with me to the end as I make my case. Still, what would be the constitutional argument for this position? The argument for this would be premised on the 14th Amendment, an often misinterpreted amendment that protects peoples’ rights to the “equal protection of the laws.” This has been the Amendment used to argue for an end to discrimination based on race, gender, et cetera. The ACLU will certainly disagree, but I find it hard to make the connection between ensuring that all people are treated equally under the law (ie, the law cannot make different provisions for different classes of people) and give the government the power to force an individual to serve another individual against their wishes.

 

  1. So if the real issue isn’t either of these, what is the real issue? This is an issue of property rights. Who owns you and your labor? A Facebook critic and debater claimed that, while I own my own labor, the government can force me to use that labor equally for those they believe I should serve, effectively preventing me from discriminating. But if I can be forced to use my labor to serve someone I choose not to—for whatever reason—is that not, in so far as it goes—government owning my labor?

 

  1. Or you can look at it another way. To force a person to sell their labor to another is to say that the customer owns the labor of the other. Do you really own your own labor? To the extent that someone must use their time, resources and labor to serve you, is that not a violation of their property—themselves and their labor? In most places, we’d call that servitude.

 

  1. If someone says they refuse to serve balding red-heads, I may be upset and offended. But I am not entitled to their labor. On what moral basis can my demand that they serve me overrule their right to their own time, labor and resources? They may be foolish, petty and even morally stunted, but that does not give me title to force them to serve me or quit work altogether.

 

  1. But what about the argument: “You’re not forced to offer that labor; you can go out of business instead.” Yes, this is a frequently-used argument, though it’s put in more humanitarian terms: “We only ask [demand] that if you choose to sell your labor, you sell it equally to everyone [who we chose].” Okay, okay, so I put in my interpretation. Well, isn’t it re-assuring that our labor is only owned by the government (or the person being served) if we choose to … work? Catch the sarcasm.

 

  1. And the other argument. “It’s only servitude if it’s uncompensated. The cake-baker would still have been compensated, so it’s not actually servitude if we tell him how to use his labor and resources.” So we can choose to work or not. If we choose to work, we are forced to use our resources and labor to serve whoever the government says we should. But not to worry; we’ll get paid for it. Argument settled, they say. Really?

 

  1. “But discrimination is terrible! We must use the power of the state to end it!” Well, discrimination can be terrible. It can be morally reprehensible. It can be immature. It can be rather benign and inconsequential. And many times, it can be quite prudent. Not serve someone because of the pigment in their skin? Not serve someone because you’re supporting a lifestyle you believe is immoral? Not serve someone because you think they’re dangerous? Not serve someone because you don’t like them? The rationale for discrimination can run from idiotic to prudent, to a mere question of moral belief.

 

  1. We all discriminate all the time. Discrimination has become a deeply negative word due to its historical association with racial discrimination. But discrimination is simply freedom of association: there are people we would rather associate with and there are those we don’t. As I said, unfortunately, some people have foolish and morally decrepit rational for their choices of association. Sometimes its quite prudent (I won’t employ a child molester to babysit). Sometimes, it’s a question of moral belief, such as the case with the cake baker refusing to use their time, money and labor to make a cake for a gay wedding.

 

  1. Exchanging your goods and services with others (ie, starting a business) does not suddenly remove your property rights and give control over your labor to the government or society at large. This point addressed again a bit later.

 

  1. Consider my response to a Facebook debater who spouted many of these arguments I’ve discussed: “Are you okay with the logical extension of that argument? On that line of reasoning, anyone who exchanges goods or services with anyone else may no longer choose who to exchange those goods or services with… I presume here that you wouldn’t make exceptions [in order to remain consistent]. For example, you must also offer your services to pedophiles, Nazis, child porn marketers, et cetera, according to your argument, if the government saw fit. Either that or quit offering goods or services to anyone. … My point is that it doesn’t really matter what the reasoning is for discrimination. If you force someone to offer their (even compensated) labor to someone they disagree with, you have to equalize it everywhere and to EVERYONE. Unless, of course, using the power of the state to force people to offer their services to people they would rather not is really just subjective and based on whoever the state (and their constituents) want to.” I later reiterated my question: “So, you’re okay with the government forcing you to sell your labor to Nazis, pedophiles, people who sell child porn (so long as you’re not assisting them in something illegal, as you said), et cetera, fill-in-the-blank? You never and would never discriminate for any reason, and if you did, you’d be okay with the government using force to stop you?” He never answered.

 

  1. I was finally able to get my debater to cede something: After claiming multiple times that we do own our labor, but not offering for a justification on why we could be forced to use that labor against our wishes, he finally admitted that we really don’t own our labor 100% because we are in “contract” with society, and thereby have already agreed to give up full power over our labor because of this. In his words, “entering that contract [offering services for sale] does give the government some say in how you distribute and sell your labor. “ What I couldn’t get from him was how, in fact, we agree to any such “contract” simply by exchanging goods or services with others.

 

  1. Besides, do we really want to equip the government with the subjective power of determining who has a right to your time, labor and resources?

 

  1. If you haven’t, yet, there are two other key posts you have to read related to this: “Negative v. Positive Rights” and “The Tale of the Slave.”

 

  1. A couple of closing points. First, it is the trademark of progressivism to use the power of the state to force whatever change on society that its adherents see fit. This was true during the French Revolution, during which Robespierre and others thought anyone who did not actively (even beyond passively) support “the civil state” were guilty of treason and ought to face capital punishment. It is still seen today when Progressives destroy property in their attempt to silence speech that they do not like. Or try to create “safe spaces” on college campuses where “offensive” things cannot be said.

 

  1. On that last point and as my final point, that is why arguing a case like Masterpiece on religion alone is insufficient. If your religious views do not align with the vision of progressivism, there is no moral or religious argument that can satisfy. But when it is understood correctly that the real issue is the violation of property rights (which is the basis of religious liberty, anyway), then the argument in favor of refusing the gay couple the services of the cake-maker are property bolstered and understood.

Thumbnail photo credit goes to bustle.com. 

 

The Tale of the Slave

At what point are you no longer a slave?

Admittedly, I have not read Robert Nozick. But the following is an adaptation of a portion of his 1974 book titled, Anarchy, State and Utopia. I have here no further commentary to offer, but simply wish to relay a series of scenarios which, if nothing else, are a teacher’s delightful avenue to thoughtful provocation for those who overcome any aversion to the thistle-strewn road of challenging questions.

Nozick begins with, “Consider the following sequence of cases, which we shall call the tale of the slave, and imagine that it is about you.” He proceeds, and I summarize:

  1. There is a slave completely at the mercy of his brutal master’s whims. He often is cruelly beaten, called out in the middle of the night, and so on.
  2. The master is kindlier and beats the slave only for stated infractions of his rules. He gives the slave some free time.
  3. The master has a group of slaves, and he decides how things are to be allocated among them on cordial grounds, taking into account their needs, merit and so on.
  4. The master allows his slaves four days on their own and requires them to work only three days a week on his land. The rest of the time is their own.
  5. The master allows his slave to go work in the city or wherever they want for wages. He only requires them to send back 3/7ths of their wages. He also retains the power to recall them to the plantation if there is some emergency on his land, or he can raise the amount required of them. He also retains the right to restrict the slaves from participating in certain dangerous activities that threaten his financial return (ie, mountain climbing, smoking, et cetera).
  6. The master allows all of his 10,000 slaves to vote, except you, and the joint decision is made by all of them. There is open discussion, and so forth, among them, and they have the power to determine to what uses to put whatever percentage of your (and their) earnings they decide to take; what activities legitimately may be forbidden to you, and so on.
  7. Though still not having the vote, you are at liberty (and are given the right) to enter into the discussion of the 10,000 to try and persuade them to adopt various policies and to treat you and themselves in a certain way. They then go off to vote to decide upon policies covering the vast range of their powers.
  8. In appreciation of your useful contributions to discussion, the 10,000 allow you to vote if they are deadlocked (5,000 for and 5,000 against). This is has never happened, yet.
  9. They throw your vote in with theirs. If they are exactly tied, your vote carries the issue. Otherwise, it makes no difference to the electoral outcome.

Nozick concludes with the deeply provocative question:

“Which transition from case one to case nine made it no longer the tale of a slave?”

What are your thoughts? Comment below, or head over to the LCKeagy Facebook page.

A Logical System of Justice?

My 10th grade class, which studies the historical narrative from circa 1600 to 1865 with a focus on Western Civilization (Europe and the Americas), has been spending some time studying the history of Anglo-British law as it developed through the Middle Ages and up through the Glorious Revolution, forming much of what was called English Common Law. I’ve already discussed some of this history briefly in an earlier post.

And in the course of our learning, I teach them that the U.S. judicial system of not based on a system of reparation. (And to note, it was not entirely so in Great Britain, either, as time went on. British royalty increasingly was quite prone to assume that they were the source of law, and the highest levels of the English judicial system were originally appointed by the king and carried his mandate. And when many of the colonists rebelled in 1765-1783, many were doing so on the basis that the English authorities were abandoning their traditional principles. And if you subscribe to my email, my upcoming email begins with an example of a jury trial condemning an English Catholic to death for refusing to admit that the king was the head of the church.)

Understandably, they are surprised. Nobody has presented law in this way before, and it seems so straight-forward to them.

I’ve been teaching them about the difference between negativism and positivism. Negativism (from which are derived negative rights, as I discuss in this post) is the idea that law comes before and outside of government. The opposite is positivism, which says law comes from government … if it is legislated to be wrong (or right), then it is wrong (or right). Negativism says it is wrong to steal, regardless of what the government says. Positivism says it is wrong to steal because the government says it is wrong.

The implication? In the development of English law through the Middle Ages onward, most law, accordingly, was developed through litigation (the legal process) instead of legislation (the law-making process) as negativism was the presumption. If someone was robbed, they could be provided compensation even without a law saying that stealing was wrong. And the guilty party was forced to pay reparations.

And this is where my students can see something obvious. If negativism is the presumption, then the person wronged has to be compensated. If I steal my neighbor’s truck, then I owe him…a truck. That’s called reparation. If I sell that truck and then don’t have money for a new one, then I make reparation by working until my wages have fully compensated my neighbor.

Seems like a logical approach to justice, right? Even the judicial system of the Mosaic Law given to the Hebrews as they left Egypt was built almost entirely on reparations. The person harmed was to be repaid by the guilty party.

That’s not what we have in the United States.

In the United States legal code, the government is essentially always the party that is wronged. It is the government that receives “reparation”.

If I am guilty of extortion, the U.S. system of justice requires that I pay the government a fine and spend time in prison, based on its own assessment of the crime, rather than the extent of the harm. And that money doesn’t go to my neighbor. It goes to the government. The law doesn’t require reparation to the party harmed (who will usually only get compensated if they had the right insurance), as assumed by negativism. Rather, it  treats the government like the harmed party, based on an assumption of positivism.

And yes, there are exceptions. People can file suit for reparation of damages. Unfortunately, this is inaccessible for most people given how high legal and lawyer fees are. But why are fees so high? Because the convoluted system of laws that requires an army of lawyers and their aids to navigate through.

The U.S. legal system as it is today is based on positivism. The laws are not based on negativism, based on natural rights outside of government. If the government wants to take one person’s property and give it to another because thinks the second person would make “better” use of it, then they can. The Supreme Court said so in Kelo v. City of New London (2005).

The main question I want to be drawn from this is: where do laws come from? Do you believe in negativism, which assumes a standard of right and wrong outside of government? Or do you believe in positivism, which says the government is the standard of right and wrong? And what are the implications for the system of justice?

Something to think about.

The Reality of Collectivism

In his recent book, The Problem With Socialism, author and professor Thomas DiLorenzo directs the reader’s attention to “Rabbi Daniel Lapin, a clergyman who is also an economic writer and speaker,” who “points out that anything made by God, whether it be humans or stones (which can range from small pebbles to glittering diamonds of infinite variety) is unique; while things made by man, like bricks, can be made uniform” (page 32).

I’ll address that quote again at the end.

A few posts ago, I discussed the issue of individualism (“Individualism: Good or Bad?”). In that post, I defined individualism as the idea that each person is responsible for their own actions and the consequences of those actions.

That reality is premised on the truth that only individuals can act. Only individuals can think. Only individuals can make decisions.

Groups—or collectives— cannot act, think or make decisions. Basic logic lends itself to this understanding. (“But Lukas, what about group-think, or mob-mentality?” I’ll address that at the end of this post.)

Sometimes for convenience, sometimes with political or social agenda, we are prone to use broad sweeping terms that suggest that a collective acts. As a social studies teacher, it’s much easier to say, “the United States went to war with Japan.” Clearly, this is a misnomer. The United States is not an entity that can act. What we really mean by saying something like that is that individuals in the United States made certain decisions that resulted in the American soldiers going to war with Japanese soldiers.

Merriam-Webster offers this definition of collectivism: “emphasis on collective rather than individual action or identity.”

By no means a recent phenomenon, there are powerful societal and political movements that seek to act on behalf of some group or some collective, whether it is women, the poor, blacks, immigrants, et cetera. We call this identity politics, and it is predicated on the idea of collectivism.

Collectivism, by suggesting that groups can think, act and make decisions, readily places the group above the individual. In social terms, this means that we are happy pursuing a “collectivist” agenda at the expense of any particular individual. In economic terms, this premises the pursuit of egalitarianism, the pursuit of material equality in a society. Ayn Rand put it this way: “Collectivism means the subjugation of the individual to a group–whether to a race, class or state does not matter.”

Let me leave you with a few key points:

First, collectivism, insofar as it suggests that groups can act, think and make decisions, is a self-inherent falsehood. This is a logical fallacy. Only individuals act, think and make decisions.

And this is not to entirely abandon the idea that a sort of “mob-mentality” can have a powerful effect on members within a group. History provides an abundance of examples. Take Nazi Germany. Or the Rwandan genocide. Place large groups of individuals with lots of anger and/or passion, and those individuals in that group can begin to behave in ways that they might not otherwise have if left alone. But still, the principle of individualism is not lost because of the powerful influence of what individuals in a large group can have on each other. Human nature is quite prone to atrocities committed as groups. Still, the individual cannot submit as his scapegoat, “I am not responsible for the murder I committed because we were all caught up in the passion to kill.” A court of true justice will never let this person off the hook.

On that same note, the fallacy of collectivism means that groups are not victims of other groups. This one will not particularly sit well with some readers, but it is the logical extension of the principle of individualism and that only individuals act. I am not, by collectivist default, any more guilty of racism because I am white than my wife is the victim of sexism because she’s a woman. Likewise, it is not incumbent upon some “groups” to repay some wrong to some other “group” committed by people of their same “group” in the past. Individuals can be victims of other individuals, because only individuals act, but groups cannot be victims of groups. (And when this is the case, the guilty individuals should, obviously, be held accountable.)

Second, collectivist thinking lends itself, logically and bolstered by historic reality, to great danger. The rhetoric was common in Stalin’s Soviet Union: a few eggs are always broken in the process of making an omelet. The pursuit of some “group-agenda,” such as the biological purification pursued by the Nazis, has had incredible consequences on hundreds of thousands of individuals. Indeed, socialism itself is predicated on some form of collectivist ideology (we must violate individual rights of some for the betterment of all society), and socialist regimes killed more than 100 million people in the 20th Century*. We can track this back even further, to such turbulent and violent events as the French Revolution.

On a more benign level, even collectivist political, social and domestic agendas can end up hurting those they intend to benefit because the individual is forgotten for the group. As I will lay out in blogs to come, many policies meant to help some “group,” such as women or minorities, have negative consequences on individuals in those and other groups.

Additionally, collectivist victim hood can (and often does) lead to the violation of individuals’ rights as one “group” seeks out revenge or compensation from some other “group,” regardless of whether or not individuals being held to blame had any part in real or alleged abuses. An example of this is the demand that the wealthy (the collective), because they must inherently be greedy, therefore are required to account for their alleged “greed” through higher taxes, et cetera. Another purely hypothetical example would be if modern-day Irish-Americans demanded that white Americans pay recompense for the ill-treatment of the 19th Century Irish immigrants. (And please keep in mind that my principles hold in reverse: collectivist thinking was just as damaging to the Irish immigrants of the early 1800s, or to the Africans of the early American slave trade. These examples only bolster my point.)

Third and finally, I will refer back to the quote at the beginning. All that which is made by God is unique. Individuals are unique. Individuals have varying backgrounds, personalities, talents, abilities, et cetera. The collectivist, to some extent or another, abandons this truth in their thinking and either treats all in a group as identified first by their group identity, or pursues some egalitarian end in an attempt to make all the individuals in a group as “bricks.”

Rather, this blog’s author would passionately advocate that we recognize that only the individual acts, thinks and makes decisions. And we ought to couple this with the understanding that each individual is unique. I do not care to distinguish a person based on some collectivist identity first and foremost, but rather much prefer to see each individual as an individual, unique to every other. To treat the individual as primarily “one in a more important collective” is a gross dishonor. All men and women should be treated as unique individuals with dignity, respect and honor.

*DiLorenzo, Thomas. The Problem With Socialism. Copyright 2016. 

Individualism: Good or Bad?

If you subscribe to my email (which you should!), back in a November email, I narrated the attack of a Facebook troll who trotted down an ad hominem line of attack aligned against many the supporters of a free society. In essence, it is this: “You are all just rugged individualists with greedy appetites to take from others, void of compassion or care.”

My readers already know that is false for this blog’s author, but it’s not just false for me. Many people who call themselves libertarians are regularly attacked by the same argument. So I wanted to just bring a few points of clarity to the issue of individualism.

First of all, let’s just review the basic definition of libertarianism. Libertarianism is a political philosophy (and nothing more) that advocates for as minimal a government as possible, based on (or resulting from) the ideas of property rights and the non-aggression principle (I wrote on both these at the posts each are linked to). It doesn’t, in and of itself, subscribe to any religious position (it’s not a religious principle) or moral positions related to what is good or bad to do beyond those two basic foundations. Despite what the activists may communicate, libertarianism is simply a political philosophy. (Previous blog dealing with this: “Libertarianism v. Authoritarianism”)

Back to the idea of individualism. This idea is also foundational in the libertarian political philosophy, but not in the way that it is often used in attack. Individualism merely means that each person is responsible for their own actions, and the consequences of those actions.

Most people’s reaction: “well, duh.” But then look around you at the world we live in. Look at the students who are coming out of college straddled by tens of thousands of dollars of debt. The movement for government cleansing of all student debt is growing. “I shouldn’t have to pay all this off,” they say.

In this example, there is the counter-argument to be made that government has made the credit for college cheap and consequently, through the logical incentive processes, flooded the market with more and more people with college degrees, thereby diminishing the value of those degrees and driving up the price of college. (This is entirely true.) Doesn’t the government hold some responsibility, as well? Oh, most certainly, and part of the purpose of this blog is to clarify the nature of just this sort of thing.

But that does not eliminate the responsibility of the individual who took out the loans. There was not a gun placed at his or her head.

This is but one example. Without exhausting your attention, I’ll leave your imagination (or, more likely, your observational experience) to more. Individuals are responsible for their own choices and the consequences of those choices. Individualism is, then, put another way, personal responsibility.

An elementary concept that seems to be rapidly vanishing amidst my own generation.

What does individualism, in this sense, encourage? It encourages thrift. It encourages work ethic. It encourages forethought, planning, and seeking good and varied council, and follow through. It encourages taking responsibility for your own choices and actions.

So, what is usually meant by individualism when used in attack? Just the way it was used against me. Selfish. Self-centered. Greedy. Uncaring. Lack of compassion.

But that’s not what individualism is for the advocates of liberty. That is an entirely different sort of ideology than personal responsibility. Individual does not preclude working together, collaboration, mutual support, community, relationship, generosity, or any other similar ideas! In fact, I would argue emphatically, it encourages them.

(In a very real spiritual sense, I believe that Christians have a spiritual obligation to volunteer their resources, time, talents and influence in ways to help others. That is not a libertarian or non-libertarian position. Libertarianism, again, is a political philosophy that does not deal with that, at all, except to say that the government cannot use threat of force to take from some against their will and give it to others.)

Individualism (personal responsibility) and compassion (voluntary generosity) are the best and most powerful of companions. The strongest of societies are built on both.

On a somewhat related note, many people are very much unaware of what it means to be conservative, liberal or libertarian. I have been taking a class on this over at Liberty Classroom, and will be relaying the history of these ideologies and what they mean over the coming months. I hope you’ll be watching for them! And again, please subscribe to my email. I don’t send out many, but when I do, you’ll enjoy them!