CHERRY-PICKING HISTORY TO SUPPORT A CAMOUFLAGED POLITICAL VIEW, A RETURN TO THE DREADED LOCHNER ERA (1905-1937).
See if you Con-Law mavens can spot the weenie in this otherwise interesting Op-Ed piece that appeared in the San Francisco Chronicle on Nov. 24, 2004, the day before Thanksgiving.
I particularly liked the graphic illustration of what happened when communal living was attempted, and fell flat.
If you've ever tried to get people to cooperate, you won't be a bit surprised to see how difficult it is.
That's why they have sergeants in the army, I guess. To whip people into line or otherwise shape them up to get the job done.
But the Pilgrims weren't in the army.
They were trying to survive, that is, to wrest a living out of wilderness and sea.
Whipping and shaping weren't going to work.
The Pilgims helped to develop our beginning ideas of capitalism, i.e., a market-oriented economy, as we call it today, not liking the word 'capitalism' any more for its baggage acquired during the bad old days.
The writer is Gary M. Galles, an economics professor at Pepperdine U. in Malibu.
Here's the article, from SFGate, reprinted below. I've emboldened the controversial opinion:
Private property, the Pilgrims' progress
- Gary M. Galles
Wednesday, November 24, 2004
At Thanksgiving, Americans reflect on their blessings and hope for gatherings of togetherness and unity, with the Pilgrims serving as examples of peace, harmony and thankfulness.
While their 1623 "way of thanksgiving" represents what we wish to infuse in our celebration, Plymouth Colony before 1623 was closer to a Thanksgiving host's worst fears: resentments, harsh words and people angry and unhappy with one another.
The Pilgrims' unhappiness stemmed from their system of common property --
not inspired, as often asserted, by their religious convictions, but imposed against their will by the colony's sponsors. The fruits of each person's efforts went to the community, and each received a share from the common wealth. This caused severe strains among the members, as colony Gov. William Bradford recorded: "... the young men ... did repine that they should spend their time and strength to work for other men's wives and children without any recompense. The strong ... had not more in division ... than he that was weak and not able to do a quarter the other could; this was thought injustice. The aged and graver men to be ranked and equalized in labors and victuals, clothes, etc. ... thought it some indignity and disrespect unto them. And the men's wives to be commanded to do service for other men, as dressing their meat, washing their clothes, etc., they deemed it a kind of slavery, neither could many husbands well brook it."
Bradford summarized the effects of their common property system: "For this community of property (so far as it went) was found to breed much confusion and discontentment and retard much employment that would have been to their benefit and comfort ... all being to have alike, and all to do alike . .. if it did not cut off those relations that God hath set amongst men, yet it did at least much diminish and take off the mutual respects that should be preserved amongst them."
How did the Pilgrims move from this dysfunctional system to the situation we try to emulate in our own gatherings? In the spring of 1623, they decided to let people produce for their own benefit: "All their victuals were spent ... no supply was heard of, neither knew they when they might expect any. So they began to think how they might raise as much corn as they could, and obtain a better crop than they had done, that they might not still thus languish in misery. At length ... the Governor (with the advice of the chiefest among them) gave way that they should set corn every man for his own particular, and in that regard trust to themselves ... And so assigned to every family a parcel of land ..."
The results were dramatic: "This had very good success, for it made all hands very industrious, so as much more corn was planted than otherwise would have been by any means the Governor or any other could use, and saved him a great deal of trouble, and gave far better content. The women now went willingly into the field, and took their little ones with them to set corn, which before would allege weakness and inability, whom to have compelled would have been thought great tyranny and oppression."
That was quite a change from their previous situation, where severe whippings had been resorted to as an inducement to more labor effort, with little success other than in creating discontent.
Despite the Pilgrims' increased efforts in 1623, a summer drought threatened their crops. Following their beliefs, they offered contrition for their sins. Then the drought broke, which led to the Thanksgiving we still try to emulate. And as historian Russell Kirk, who used the example to illustrate the importance of property rights in "Economics: Work and Prosperity," observed, "never again were the Pilgrims short of food."
It is appropriate to remember the Pilgrims as we celebrate Thanksgiving.
Though we have incomparably more than they did, we can learn much from their "way of thanksgiving."
But we should also remember that our material blessings are the fruits of America's system of private-property rights and the liberties they ensure, including the freedom to choose our employment and spend money as we see fit.
Those rights are under constant assault today, from limits on people's ability to contract as they wish, especially in labor relationships, to abuses of government's eminent domain.
Nevertheless, the power for peaceful and productive cooperation that the Pilgrims began to prove by experiment almost four centuries ago endures.
Gary M. Galles is a professor of economics at Pepperdine University in Malibu ([email protected]).
©2004 San Francisco Chronicle | Feedback | FAQ
Interesting, right?
What could be wrong with this?
I'll tell you what.
It's fine to be reminded again that Communism, outside of the family, provides a disincentive for people to cooperate. We're just not all that altruistic when it comes to people whom we don't recognize as legitimate family members, and not all of them.
There's nothing like a shiftless relative to take the bloom off the "Sure, have some more of this" rose.
Here's what Prof. Galles isn't telling you. Presumably he knows, otherwise he wouldn't be much of an economics professor.
"But we should also remember that our material blessings are the fruits of America's system of private-property rights and the liberties they ensure, including the freedom to choose our employment and spend money as we see fit."
He would have been all right if he wanted to trace our material prosperity to our system of private ownership protected by law. But when he adds the politically loaded double-barreled broad claims of "including the freedom to choose our employment AND spend money as we see fit," he steps with both feet back into the dreaded Lochner era.
Why dreaded?
Because this was the period of "Laissez-faire" capitalism, meaning no government regulation, no economic reform laws against the dislocations of the Industrial Revolution and the Robber Barons, and no social reform laws either. During this era it was against the law for working people to unionize.
"Freedom to choose our employment" sounds benign, in the abstract, but in real life this alleged freedom was used to deny workers the right to unionize, because those who didn't join the union were barred from being hired. So Prof. Galles appears to be engaging in a game of using political code.
When Galles proclaims the freedom to "spend money as we see fit," he's doing the same thing, using code to cover a host of unstated controversial issues. For example, if you were a business owner during the Lochner era, which is before FDR's New Deal of the 1930s, you likely would oppose what today we regard, in Constitutional Law terms, as "ordinary economic and social legislation."
You would oppose it because it would cost you money. Government would be telling you how to spend your hard earned dollar. You might not think it fair, as Prof. Galles apparently doesn't. Here's what you would likely oppose:
- Laws permitting workers to unionize into union shops, meaning only union workers need apply;
- Laws prohibiting child-labor in factories or in homes doing piece-work;
- Laws protecting the health and safety of women working in sweatshops and firetraps such as the Triangle Shirtwaist Dress Company which incinerated many young immigrant women in New York City;
- Minimum wage laws;
- Maximum hours laws, i.e. 8-hour work-days, 5-day weeks, and time-and-a-half for overtime, things we take for granted today'
- Sick leave;
- Maternity leave;
- Family leave;
- Workers compensation for job-related injuries;
Social security pensions for workers, and their survivors, too old or infirm to work any longer, to prevent starvation on the streets.
Not only were all of these, what we call "ordinary economic and social," pieces of legislation enacted after hard-fought battles in the political arena, but the U.S. and some state supreme courts struck down, as unconstitutional a good number of them. New York abolished its first workers compensation law.
Felix Frankfurter, as an attorney, lost the Adkins v. Children's Hospital minimum wage for women hospital workers case in the 1920s. Federal courts regularly issued injunctions against labor actions such as strikes and picketing.
Why?
Because the prevailing economic belief of the era was that business owners had the right as property owners to hire whom they wished and to pay as little as the workers, one-at-a-time, not in a bloc, as with a union, the individual would accept.
Rather than see his wife and children starve, individual workers would underbid each other in a dive for the bottom, keeping workers in poverty and near-starvation. But this was fair, thought the U.S. Supreme Court because not only did the business owners ("capital") have freedom of contract and the right to spend their money as they wished, but so did the laboring man.
Joe Sixpak had the right to bargain with Andrew Carnegie, John D. Rockefeller, and J.P. Morgan on equal terms, held the Court in Lochner.
In Constitutional Law usage, "freedom of contract" refers back to that earlier, discredited, Lochner era.
For well over 30 years 'progressives' such as Republican Theodore Roosevelt opposed the use of the due process guaranty of liberty in the Constitution (5th and 14th Amendments) to deny millions of people much needed work-reform laws.
When the Depression hit, FDR tried to slow it down, then reverse it, by establishing federally funded, taxpayer funded, government agencies to hire workers (Civilian Conservation Corps or CCC, Works Progress Administration or WPA).
During the New Deal Congress also enacted the National Labor (Wagner) Act, the Fair Labor Standards Act (wages & hours), the Agricultural Adjustment Act, Mining Laws, meat inspection laws (see the Schecter Brothers Poultry "Sick Chicken" case).
In many case the U.S. Supreme Court declared New Deal legislation unconstitutional as denying the business owners, often large corporations, their liberty to pay rock-bottom wages in unsafe work-places.
The situation so polarized the country that FDR proposed to pack the Court with six extra judges, one for every sitting justice over 70, to bring the Court into modern reality.
In the Lochner case, where a N.Y. bakery worker protection act was declared unconstitutional in 1905, on freedom of contract, Laissez-faire, grounds, Justice Holmes, in one of his most famous dissents, asserted that the Constitution does not embody a dog-eat-dog economic system.
If the people, acting through their representatives, demand wage, union, and workplace safety regulation, then it is up to them, not the Court to say they cannot have it. The forces of capital, the business owners, Wall Street, etc., will have to deal with it.
And of course over the years they have dealt with it.
Yes, the controversy continues as to how much government regulation is too much, but if there's one thing we've learned, that the Court has learned, is that the proper arena for thrashing out the competing interests is the political arena, at the voting booth, not before the Supreme Court.
Why?
Because no one elected the Court to serve as a super-legislature passing on the wisdom and efficacy of legislation. As long as the laws are capable of being believed by a rational legislator to advance the ostensible purpose of the legislation, the Court will defer to the judgment of the legislators, and not substitute its own.
Prof. Galles is correct to point out the two extremes represented by the Puritan efforts, communal at first, which didn't work, and individual, which did.
What he fails to point out, in holding up the latter, or individual model, as such a wonderful example, and using the discredited language of "freedom of contract," which stems from the Lochner era, is that he fails to make even a passing note to the abuses of unrestricted individualized greed.
Harnessed greed certainly is the basis of our work energy, but as we saw before the reform laws were enacted, over decades of labor-capital strife, sweatshops and starvation wages for men, women, and children were the inevitable result.
College professors usually work indoors and are not required to do a lot of heavy lifting.
It may be too easy for some of them to lose sight of what it took to put him there, for he's teaching the children of these workers that his words don't seem to recognize or protect.
His words seem quite protective of quite a different class of society, however, the business owner who wants his freedom to hire and fire with no let or hindrance, and to spend his dollar on his yacht, not on workers compensation for his injured worker, who can just go home to heal or die as he will, as was the old practice.
He can always be replaced by another worker, an immigrant perhaps, who swam the border, who is so desperate for work that he, or she, will work for even less money to keep body and soul together.
Prof. Galles seems to have overlooked the economic history that followed after the Puritans switched from communism to capitalism.
I wonder how a person educated in economics could have done such a thing.
Certainly not by accident.
In Con-Law you have to be alert to nice-sounding, broadly sweeping assertions of rights, such as "the freedom to spend my own money as I wish."
They may sound good, but you have to ask what the abstract formulation is concealing by way of controversy existing on the ground. This is why it was worth taking on Prof. Galles's formulation.
He seems to be leaving out too much of importance.
Be careful what you salute.
It may turn out to be the wrong flag.
Consider Prof. Galles's next statement:
Those rights [for businessmen, and individual workers, the freedom of contract and the right to spend your money as you choose, not the way government chooses] are under constant assault today, from limits on people's ability to contract as they wish, especially in labor relationships, to abuses of government's eminent domain.
Here, Galles steps down from the highest level of abstraction (freedom to contract and spend as you like), where you have no idea what that applies to or what could be wrong with that, to a clue as to where his head is really at. Galles does not like the state of labor relationships and alleged abuse of government's power of eminent domain.
Whatever is he talking about?
We can only surmise.
My best guess, based on Galles's comment that the alleged rights to contract and to spend as one likes "are under constant assault today" (he doesn't say by whom) is that he doesn't like labor unions. He also doesn't like what Republican activist legal groups don't like: zoning restrictions that reduce or limit the profitability of land ownership.
Here's the way these go to the Republican right wing:
Labor unions are bad because they cost business owners a lot money. Just look at the strikes that occur in various industries, from auto to mine to hotel workers. The unions are just too powerful and look what they do: they try to line up the expiration dates of their collective bargaining contracts with various employers such as Ford, GM, and Chrysler, or whatever Chrysler is called these days. You remember Chrysler, the one that Lee Iacocca went to government with his beggar's-cup in hand for a federal bailout so the owners could continue to make money. Corporate welfare, I think they call it. Something those Puritans that Galles admires would have rejected out-of-hand.
So, Galles would argue, unless I miss my surmise badly, labor unions are just devices for depriving business owners i.e. Wall Street, capitalists, and management, of the right to pay rock-bottom wages. Unions also deprive individual laborers from approaching powerful management, cap in hand, and begging for a job at rock-bottom wages. This is not something that most laborers today clamor for. Even cops, firemen, office workers, government workers, air traffic controllers, district attorneys, county counsel and many other white collar workers have learned that without the protection of an effective labor union they can be chewed-up and spit out by their bosses. They can be fired for complaining about working conditions and even illegal activity, such as requiring workers to work "off the clock," meaning overtime without getting paid at all, much less for overtime.
It seems that Mr. Galles's abstract principles don't work very well on the ground. They're sort of like "Liberty and Justice For All" in the Pledge. Nice sounding words until you have the temerity to ask for one of those alleged liberties and you find it isn't there because Judge Galles doesn't want to see that it exists.
"I can't find that in the text of the Constitution, he might say.
"Look for the word Liberty in the 5th and 14th," I might reply. "You'll find it there, if you have any common sense, humanity, and awareness of the past, oh, say, hundred and a quarter years."
Galles certainly has an awareness of history, as witness his going back to 1623 for his example to wave in our faces this Thanksgiving.
But what happened to the rest of our history? The Civil War and Post-Civil War industrial expansion? The Age of the Robber Barons? The Age of Laissez-Faire capitalism, unrestricted, rampant, greedy, uncaring for its workers health and safety and livelihood, so long as shareholders and management lived well? The workers could live in slums for all they cared. And workers did live in slums. Because shareholders and management didn't care. The issue had to be forced. That meant labor and political strife over remedial legislation for decades during the 20th century.
Galles skips that part. He cherry-picks the Pilgrims' experience for the proposition that communism didn't work. Only unrestricted freedom to go into business for oneself and family counts. He carries that down to Thanksgiving 2004, as though the New Deal never happened nor was ever needed.
What about Galles's other example: government abuse of the power of eminent domain?
This is another Constitutional Law issue because both the 5th and 14th Amendments provide that neither the federal nor state governments may take your property without either due process of law or giving you "just compensation" in return.
The power of eminent domain is the government's power to take your property for a public purpose, such as to put a highway through or build a defense installation through home or farm. For the benefit of society, individual rights have to yield to the greater good, is the idea.
The property owner gets a jury trial as to the value of the taking. He may also sue to object that the taking is not by government (say if the taking is attempted by a quasi-governmental agency), i.e., it is for a private, not a public purpose.
The conservative right, consisting perhaps of many landowners, doesn't like having their property taken, even if paid for.
But there is something that bothers them even more. It is when government doesn't actually take their land ("steal" it might be the landowners view of takings without their permission) but instead does something to significantly impair its value.
How could government take the value of your land without actually taking it?
Suppose you purchased an expensive beach-front lot, planning to build that nice second-home overlooking the sea. But then suppose some study showed that wave-erosion of the beach in your area where homes were built was ruining the beach. Not only that, but a species of wild bird nests on the ground you invested in.
So the Coastal Council, established to protect beaches, wildlife, and public access to the shore (it belongs to 'everybody,' not just to the wealthy landowner who buys up the rights, they say) enacts a new zoning regulation prohibiting any landowner from building on his beachfront property, to protect beaches, birds, and bathers.
Suddenly you've been deprived of all of the value of your property.
There's a recent Supreme Court case on these facts, called Lucas v. South Carolina Coastal Commission ( ) which we study in our class. In it the Supreme Court wrestled with the question of when a taking is a taking. Here the government, the Coastal Commission, didn't exactly deed the beachfront owner's property over to itself in a condemnation proceeding, the way things are usually done when the power of eminent domain is exercised.
Instead, the Coastal Commission took all the value to the owner of his property by rezoning it as off-limits to any construction whatsoever. 100%, said the Court.
That was a taking.
This doesn't mean that Mr. Beach-Owner can build. It only means he can sue for the value of property that went from, say, $2 million on the real estate market to zero. He ought to be able to collect the $2 million from the government for the rezoning.
The problem with the Lucas case, if there is a problem with it, is that the Court hasn't said what happens if a zoning ordinance doesn't take away ALL of the value of the owners property, but only 50% of it, say, or 25%, or 90%, or 99%. We have no lines drawn. Under Lucas, Government has to pay for total takings, but not partial takings.
Does that sound fair?
Not to landowners who've had their value taken, such as by being prohibited from selling to developers. Many farmers have worked hard and scrabbled to hang onto their money-losing farms for years, hoping to sell to developers wishing to put up condominium developments for home-buyers. Farmer gets to retire, home-buyers can find a place in which to live, and developer makes a buck. Life as we admire it, right?
Not so fast, however.
Suppose that government says we need to preserve our vital farmland to grow our food, therefore be it enacted that no land zoned as agricultural land may be re-zoned for residential, industrial, or any other purpose.
Suddenly the farm owner who counted on land worth, as housing, $2 million, say, finds it worthless unless he wishes to continue to grow apples, in which case it's worth, say, $40,000.
A taking?
Not under Lucas.
But the GOP, after the 2004 election, has said that it would press for protection for land owners who have been victimized by government regulations that reduce the value of private property.
That sounds fair, doesn't it?
Think, for a moment, about the effect such a principle of law, if it became a principle of law, would have not just to benefit Mr. Landowner, but on the rest of society's ability to govern itself.
Government would have to stop passing laws. Congress, the state legislatures, city and county councils, would have to stop legislating. Because an awful lot of regulations, it could be argued, impair the value of someone's property.
If the City wants to re-route a bus-line, merchants near the bus stops will lose customers. Profits will go down. The value of their businesses will decline. Property values go down. "The government stole my business," business owners will shout. "Pay me." And the City will be sued, because it needed to move a bus route. We will be living in lawyer's heaven, lawyers for landowners, that is. Because there will be so much more litigation.
You get the idea.
Prof. Galles sees government takings to be a big problem, and no doubt it is. But he doesn't give much of a picture of what his attitude entails, does he? He certainly doesn't give both sides. Nor does he suggest whether and why there might be some opposition to his views.
No, according to Galles, we should simply be thankful to those lovely Puritans, who gave us unrestricted capitalism, a certain amount of religious strife and Salem witch hunts, with all their hangings, for showing us how to live today.
We're too far down the road, Galles.
We cannot turn the clock back to the bad old days, when your grandfather worked on the docks with no protection from being fired if he protested unsafe working conditions.
I wonder if Prof. Galles really wants to turn the clock back.
[In August, 2005, I was advised by Prof. Jeremy Bangs that he had included a reference to this article deconstructing Galles in a compendium Bangs has written concerning how the Puritans (or the Pilgrims, as we tend to use the terms interchangeably in casual speaking) have fared in history and literature. Thank you, Prof. Bangs, I appreciate the mention.] Prof. Bangs is described in the reference as:
Jeremy Bangs (Ph.D., Leiden University), a Fellow of the Pilgrim Society, is Director of the Leiden American Pilgrim Museum, having previously been Visiting Curator of Manuscripts at Pilgrim Hall Museum, Chief Curator at Plimoth Plantation, and Curator of the Leiden Pilgrim Documents Center.For more on the Pilgrims see their site.