Public and Private Law

July 11, 2020

by Steve Stofka

A recent Tik-Tok video shows a woman berating some unseen worker at a dental office. The problem? The woman is not wearing a mask and is not allowed past the reception desk for her appointment. She claims to know the law and is going to sue them. She does have intimate knowledge of a private law that she carries around in her head. She is Queen of her own private island. Public law and the courts disagree with her, but many of us live by two laws – the public and the private.

This is a good jumping off point for a discussion on the freedoms of private businesses. In 1960, in Greensboro North Carolina, four black university students staged a sit-in at a Woolworth’s 5&10c store which would not serve them at the lunch counter. Woolworth was well within their rights at this time. It was the southern way.

Over the next few weeks, the number of people grew and attracted national attention, including President Eisenhower. White residents staged a counter protest which turned violent. Boycotts of other stores began and caused substantial sales losses to Woolworth. A few months later, Woolworth desegregated their lunch counters. Discrimination in places that served the public was made illegal with the passage of the Civil Rights Act four years later.

Generally, a business has the freedom to screen their customers based on a criteria that applies to everyone. Restaurants often post “No shoes, no shirt, no service,” and may add “no mask” to that list. Inebriated customers at beach communities sometimes protest about the “no shirt” provision. This is America, man. I have my rights! The bouncer ushers the customer out the door or the proprietor calls the police.

We understand that religious communities have a set of laws different from civil law. People who object to a woman’s right to an abortion may do so based on a 19th century papal proclamation that life began at conception (McGarry, 2013). That papal bull overturned centuries of Catholic teaching.

At a campsite near Lake City, Florida, I was first introduced to an alternate interpretation of civil law, but one based on a historical, not religious, foundation. Following the Civil War, the 13th, 14th and 15th amendments were passed over the objections of many southerners who felt that the North was an occupier in their land (Foner, 2020). These amendments had been forced on the southern states. Within a decade, southern states passed Jim Crow laws that undid much of the three amendments.

Under this interpretation, I was informed, Supreme Court decisions based on these coercive amendments were “illegal and void” under the exclusionary rule. This included the court’s 1954 ruling that desegregated public schools and the Roe v. Wade decision that invalidated state laws that prohibited abortion. Crazy talk? The exclusionary rule relates to the admissibility of evidence, not the validity of court decisions (Web Solutions, n.d.). That private interpretation of the law certainly guides the actions and attitudes of too many.

The 1968 Fair Housing Act hoped to end many decades of housing discrimination in state and federal law. Instead, it pushed the discrimination underground (McGhee, 2018). A real estate agent might be hesitant to show a house to a black couple in a white neighborhood. She wants to get referrals from neighbors or other agents, who might wonder: Can she not navigate the subtle dynamics of filtering out less optimum clients? Keep silent. Two laws – public and private.

As discussed last week, all states require people to wear seat belts. The NHTSA reports that almost half of those killed a few years ago were not wearing seat belts (NHTSA, n.d.). But what about the law of personal freedom? It is written in the Constitution, man! I have my rights! Life, liberty and the pursuit of happiness. The phrase is a declaration of intent and sentiment found in the Declaration of Independence, not the Constitution. It has no force of public law but is the cornerstone of private law.

There are laws against dumping but many contractors will dispose of remodel trash in dumpsters to save the time and expense of driving to the city dump. According to a contractor’s private interpretation of the law, it’s not really dumping because the debris is going into a container. Private law vs. public law.

Let’s now revisit the woman in the video who yelled at the worker in the dentist’s office. Under contract law or maybe it is appointment law, she made an appointment with the dentist and she showed up on time so the dentist has to see her. Those are the only facts that matter. Aren’t we all angry when other people do not recognize the same private laws that we carry around in our heads? Does someone else have the same personal freedom that I do – to form a private interpretation of the Constitution? Well, of course. But if they are wrong, then no they don’t, man. That’s in my private Constitution.

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Notes:

Photo by Thomas Kelley on Unsplash

Foner, E. (2020, April 03). Reconstruction. Retrieved July 11, 2020, from https://www.britannica.com/event/Reconstruction-United-States-history

McGarry, P. (2013, July 01). Catholic Church teaching on abortion dates from 1869. Irish Times. Retrieved July 11, 2020, from https://www.irishtimes.com/news/social-affairs/religion-and-beliefs/catholic-church-teaching-on-abortion-dates-from-1869-1.1449517

McGhee, F. (2018, December 04). The Most Important Housing Law Passed in 1968 Wasn’t the Fair Housing Act. Retrieved July 11, 2020, from https://shelterforce.org/2018/09/05/the-most-important-housing-law-passed-in-1968-wasnt-the-fair-housing-act/

NHTSA. (2020, January 15). Seat Belts. Retrieved July 11, 2020, from https://www.nhtsa.gov/risky-driving/seat-belts

Web Solutions. (n.d.). Search and Seizure – The Exclusionary Rule And The Fruit Of The Poisonous Tree Doctrine. Retrieved July 11, 2020, from https://law.jrank.org/pages/10054/Search-Seizure-Exclusionary-Rule-Fruit-Poisonous-Tree-Doctrine.html.

Wikipedia. (2020, June 15). Greensboro sit-ins. Retrieved July 12, 2020, from https://en.wikipedia.org/wiki/Greensboro_sit-ins

Green Goals

March 3, 2019

by Steve Stofka

Last week I reviewed the infrastructure goals of the Green New Deal (Note #1). In Part Two this week, let’s look at the resolution’s re-commitment to justice and education, time honored themes of American life. Next week, I’ll review the income and health care proposals of the Green New Deal.

“Promote justice for all people.”
What Lincoln and the Reconstruction Republicans began in the 19th Century, President Lyndon Johnson (LBJ) hoped to fulfill in the 20th Century. President and Mrs. Johnson started the LBJ foundation in 1971, three years after he left office. In an ongoing commitment to the goal of justice for all, the foundation honors individuals who have demonstrated a dedicated pursuit of those values. Last year’s recipient of the foundation’s Liberty and Justice For All award was former Arizona Senator John McCain. (Note #2).

During his life growing up in Texas, LBJ witnessed the class/race warfare that many white Southerners took for granted. The un-Christian racism apparent for all to see in the southern states was almost as prevalent in northern states but cleverly disguised by implicit understandings among white Northerners. Urban housing maps were “redlined” to confine blacks to small sections of a city where they could purchase or rent housing. During his presidency, LBJ signed the Fair Housing Act to outlaw, if not stop, the practice (Note #3). Many Northerners who had adopted the moral high ground in their criticism of white Southerners continued to flee toward the suburbs (Note #4).

LBJ had to overcome opposition in his own Democratic Party to pass the Civil Rights Act of 1964 (Note #5). The Act struck down employment, credit and some housing discrimination prevalent throughout the country at the time. This point in the resolution is a reaffirmation of last century’s aspirations and legislation.

“Providing resources training and high-quality education to all people of the United States.”
This goal, first stated in the middle of the 19th century, led to the adoption of public education by all states shortly after the Civil War. By the end of World War 1 in 1918, all states had adopted compulsory education laws. During the first half of the 20th century, the country began Ed 2.0 as many states built secondary schools. When America declared war on Japan after Pearl Harbor in 1941, half of all young people had high school diplomas (Note #6).

After the war, the Federal government’s G.I. bill expanded access to college for veterans. This marked a new phase Ed 3.0 in American education, in which the Federal government took a greater role. During the post-war thirty-year period, the federal government and states expanded funding to traditional four-year colleges and universities.

In the last forty years, Ed 4.0 has been marked by the growth of community colleges within the states. This allowed more students affordable entry to a college education and promoted two-year degrees in applied training.

In Germany, where the government provides low cost or free higher learning, one third of high school students attend college. In Britain, the rate is one-half (Note #7). In the U.S., 2/3rds of high school students attend college (Note #8).

This goal in the Green New Deal marks a new phase in American Education: Ed 5.0. In the first two stages, the states were responsible for the development and funding of K-12 schools. The growing role of the Federal government in phases Ed 3.0 and 4. 0 worry those who have a well-grounded suspicion of the Federal government. In most areas, it is inefficient, slow to respond to a changing environment and dismissive of local concerns and standards.

These concerns should inform, not impede, this new phase of American education. Most states do not have the resources to build and maintain educational institutions that are global leaders. The Federal government must take the lead because the need is urgent. Mechanical Automation has replaced many blue-collar jobs but many of these jobs are still not cost effective to automate. Artificial Intelligence, or Intellectual Automation, is the greater threat and it affects low to medium skilled white-collar jobs.

Trends in Financial Sector employment illustrate the growing threat. A steady increase in employment from the end of World War 2 through the middle of the 1980s hit a ceiling as affordable computing became more available. Since that time, the percent of jobs in the financial sector has declined.

FinEmpPctTotEmp

A sharp mind, attention to detail and a knack for customer service are no longer a path into this sector. Programming jobs that paid the equivalent of $70,000 twenty years ago have been replaced by jobs paying $50,000. Common programming tasks have been automated. White collar employees will compete against AI systems that can be situated in any country. To compete against other industrialized nations, the white-collar workers of tomorrow will need to develop the magical talents of the human brain that are difficult to automate. That will require a large national re-commitment to education.

The high unemployment that characterized the Great Recession and Financial Crisis of 2007-2009 made it apparent to many job seekers that they needed some post-secondary education. Millions signed up for classes in community colleges, private colleges and public universities. Many took advantage of federally insured loans. Since 2006, student loan debt has almost quadrupled to its current level of approximately $1.6 trillion (Note #9). More than 11% of loans are delinquent (Note #10). Current law prevents the discharge of student debt in bankruptcy. Payments in default can be withheld from federal benefits like Social Security.

As the nation enters Ed 5.0, there will be much discussion and dissension over student loan forgiveness. Is it right that one person should receive an advantage over another person in the job market at taxpayer expense? These involve questions of moral hazard and fairness that provoke instinctual reactions in all of us. Compromises may include a debtor paying an additional percentage in taxes on wages above a certain threshold. We must not sacrifice the pragmatic concerns of a nation competing in the global workforce on the altar of our righteousness toward the actions of others.

By re-committing to traditional American values and ideals, this resolution can engage the public in a lively debate. What are our values? How do we attain our ideals in a practical and equitable manner? Do Americans need the passage of a resolution to spark argument? Heck no. This country was founded on argument and a consensus over how we should argue. The Civil War was our one horrible failure to argue with words. Thousands died in an argument using guns and cannons, not debate. Let’s hope that was our last failure to debate.

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Notes:

1. Politifact article on Green New Deal
2. Liberty and Justice For All award
3. Fair Housing Act 
4. White Flight to the suburbs
5. Civil Rights Act of 1964 
6. Education in the U.S.
7. 49% of British high school students attend college – Guardian article
8. 2/3rds of American high school students attend college – BLS data
9. Student loan debt series at FRED database
10. Student debt delinquency – Minneapolis Fed Reserve article

The Tug of History

February 3, 2019

by Steve Stofka

As we receive our income tax forms, we can be reminded of the reach of history into our daily lives. Over a hundred years ago, the 16th Amendment was passed as a way of paying Civil War debts and pensions. We are paying income taxes because of a horrific war that occurred 150 years ago (Note #1).

Since the recession, politicians on both sides of the political aisle have proposed some version of a universal basic income (UBI) that would replace many individual federal assistance programs. New idea? No. Fifty years ago, President Nixon and more than a thousand economists proposed an income plan to replace the existing welfare plan (Note #2). Democrats opposed the idea because they feared that the proposal would divert some aid from black families in the North, who were Democratic constituents, to white families in the South. Many southern Democrats switched parties in reaction to the “imposition” of civil rights legislation passed by northern Democrats in the 1960s (Note #3). The North and South have traded political parties since the Civil War but the animosities of that war guide current legislation and the fortunes of American families.

The recent government shutdown halted paychecks for many thousands of federal employees. The legislation that enables Congress or the President to shut down government was a budget act passed in 1974 by a Democratic Congress. Following President Nixon’s refusal to spend money allocated by a Democratic Congress, Democrats wanted more control of the budget process. Nixon was afraid that the additional spending would further fuel inflation (Note #4).

Two years later, Jimmy Carter was elected President and had to fight with his own Democratic party for budget control. The government was shut down five times during Carter’s four-year tenure, the most of any President. The legislation that emerged from a battle between a Republican President and a Democratic Congress 45 years ago laid the groundwork for today’s battle between a Republican President and a Democratic House. As the families of some Federal workers waited in line at food pantries last month, they might not have appreciated being victims of a historical political feud.

Prompted by the prejudices, concerns and animosities of past generations, we walk through our lives with a legal leash tied around our necks. According to the utopian rhetoric of the Declaration of Independence, our leashes should all be same length. Political and economic realities contradict those sentiments, and underlie the long history of housing, job, voting and regulatory discrimination in this country.

If my family or group enjoys a longer leash, another group must endure a shorter leash. Any equality we reach is a temporary balance in the tug of war for a longer leash. Equality is a happenstance, not a permanent right we have. “But it shouldn’t be that way!” an idealist might protest. It is that way. That’s history.

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Notes:
1. A history of 19th century income tax legislation following the Civil War, and the court decisions which nullified them.
2. Family Assistance Program proposed by Nixon. He and other economists like Milton Friedman called it a “negative income tax”
3. A timeline of the Presidential electoral map
4. A short account of the political impetus behind the act . A summary of the 1974 Budget Act.