Impatient with the pace of legislative action on amending Title VII of the Civil Rights Act of 1964 to include sexual-orientation discrimination, the Supreme Court has rewritten the statute via interpretation. In Bostock v. Clayton County (a 6-3 decision), the Court held that Title VII’s prohibition of workplace discrimination based on “sex” encompasses sexual orientation. Hence, a person fired because of homosexual orientation or transgender status may now bring a claim under Title VII. Although many Americans agree with the policy result reached by the Court, all thinking persons should lament that six unelected lawyers have usurped the role of Congress.

When engaging in statutory interpretation, the Court is supposed to implement congressional intent by examining the plain language of the statute. A statute’s plain meaning is determined by reference to its words’ ordinary meaning at the time of the statute’s enactment. In reaching its decision in Bostock, the Court asserted that it was simply enforcing the plain terms of Title VII as those terms would have been understood in 1964. It cited the late Justice Antonin Scalia and assured readers that it was engaging in a textualism that would have made Scalia proud.

The Court conceded that “sex” as used in Title VII would have been understood by an average person in 1964 as meaning biologically male or female. However, the Court followed up with a remarkable statement: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

This is balderdash. (Or better yet, “interpretive jiggery-pokery,” as Scalia once said.)

If, for example, an employer fired all lesbians working for his company, he would not be discriminating because the targets of his wrath are biologically female but on account of their sexual orientation. Sex discrimination and sexual-orientation discrimination are two distinct categories of discrimination. The former falls within the plain meaning of Title VII; the latter does not.

For most of its history, this has been the common understanding of Title VII’s prohibition of sex discrimination. As Justice Brett Kavanagh pointed out in dissent: “in the first 10 Courts of Appeals to consider the issue, all 30 federal judges agreed that Title VII does not prohibit sexual orientation discrimination.” For the first 48 years of its existence, the Equal Employment Opportunity Commission, charged with enforcing civil rights laws against workplace discrimination, viewed sex discrimination and sexual-orientation discrimination as separate matters.

Congress certainly viewed sex and sexual-orientation discrimination as different. Over the years various bills have been introduced to add sexual-orientation discrimination to Title VII. At different times majorities in both the House and Senate have approved such a change, but they have yet to come together to send a bill to the president. In many other federal antidiscrimination statutes, Congress has specifically included sexual orientation. Thus when Congress wants to prohibit discrimination based on sexual orientation, it knows how to do so.

Bostock is yet another Supreme Court decision that teaches Americans the wrong lessons. Rather than engaging in a debate, proposing legislation, and garnering votes, we are taught that the easiest way to obtain a desired policy result is to run to the judiciary. It’s a lot less work to convince five lawyers rather than 218 House members, 51 senators, and the president.

Of course, under separation-of-powers principles, all legislative authority is supposed to reside with Congress. If the people desire a certain policy or object to a policy enacted, they can use the franchise to oust members of Congress and to elect representatives more to their liking. But the people have no such power when it comes to the federal judiciary. The Court can discover new constitutional rights hitherto unknown in American history or make law through tricks of statutory interpretation, but the people have no recourse.

Bostock is but the latest example of judicial overreach. It shows why the Court should allow policy matters to be worked out in the elected branches of government.

The post Dishonest Interpretation appeared first on The Beacon.

The board is attempting to make crime disappear, and wants the convicted felons and parolees of San Francisco to feel good about themselves. On the other hand, not much diversity is going on here. 

As Debra Heine notes at American Greatness, the San Francisco supervisors did not come up with a new name for the victims of crime. These would be the people who suffer theft of catalytic converters and any other item worth less than $950, the crime wave touched off by Proposition 47. These would be the family members of those recently murdered in Gilroy, El Paso and Dayton. These would be people like Nicole Clavo, who son was shot dead in 2015, and whose murderer will be freed at the age of 23. That was due to Senate Bill 1391, signed by Jerry Brown, which forbids the prosecution of those under 16 as adults, whatever the gravity of their crime. Call it the Murderer Empowerment Act. 

Crime victims and their families qualify as “justice-deprived individuals,” but not in San Francisco. Crime victims, residents and taxpayers might have a go at renaming that city, where as Jerry Brown said of the new Bay Bridge, “I mean, look, shit happens.” Similar conditions prevail on the streets of the state capital, which could be renamed “Excremento,” a nod to unhygienic reality and Spanish colonialism alike. For its part, Los Angeles could become “Mickey Mouse City.” 

Meanwhile, the San Francisco Board of Supervisors is free to call a chicken a duck. People everywhere are free to ignore them. 

The post Memo to San Francisco Board of Supervisors: What About the “Justice-Deprived” Persons? appeared first on The Beacon.

If Facebook users were harmed by the unauthorized data sharing, why does the federal government get the money? Why doesn’t it go to the users whose data was shared?

Think about it. If no harm was done because of Facebook’s sharing of user data, the restrictions on the data sharing would be a needless cost imposed on business, with no offsetting consumer benefit. If users were harmed when Facebook engaged in unauthorized data sharing, the settlement should compensate users for the harm done to them. Why would the federal government have any legitimate claim to the settlement?

If the federal government was really looking out for our well-being, then when companies violate the law and harm us, the government would see that those companies compensate us for the harm they have done. There is no justice in a settlement that sends all the money to the U.S. Treasury and does nothing to compensate those who are harmed.

The post The Facebook Settlement: Is This Justice? appeared first on The Beacon.

Smith inserted the condition “so long as he does not violate the laws of justice” ahead of the directive because it was central to his conception of liberty. What everyone remembers is “free to pursue his own interest,” with the last often turned into “self-interest.” But Smith’s conception of human sociality and economy—I like the word “humanomics”—was far deeper than modern utilitarianism.

What did Smith mean by justice, and why is it so important for understanding his message? The carefully articulated answer was in his first book: The Theory of Moral Sentiments (1759, pp. 78-91).

Justice for Smith was the negative of his proposition on injustice, which stated that improperly motivated (that is, intentionally) hurtful actions alone deserve punishment because they are the objects of a widely shared sense of resentment.

Rules that punished in proportion to resentment emerged naturally in pre-civil society as a means of defense only against real positive evil and to secure innocence and safeguard justice.

Hence, justice is a residual. Justice is the infinite set of permissible actions remaining after specifying the finite limited set of prohibited actions and corresponding penalties.

Imagine a large playing field in which people explore, discover, and innovate, but with well-defined foul boundaries that people are not to breach without penalty; these boundaries will change, based on consent, with experience, culture, and technology.

Smith saw society as seeking human socio-economic betterment through the control of actions that our common experience leads us to judge as hurtful rather than through collective actions designed to achieve future conjectured benefits. The latter is uncertain and fraught with unintended consequences; moreover, history is littered with examples of grandiose failures. The former relies on natural impulses for individuals and assemblies to pursue betterment, risking only their own resources; this framework led him to oppose slavery, colonialism, empire, mercantilism, and taxation without representation at a time when such views were unpopular.

His policy views derive from his belief that every person’s socio-economic achievements should depend as much as possible on merit and as little as possible on privilege.

The post The Core of the Classical Liberal Tradition: Adam Smith’s Concept of Justice appeared first on The Beacon.

MacLean loves simple majority rule, and of course she hates every aspect of racial discrimination and oppression. Unfortunately for her, in U.S. history, she has to choose one or the other. In the South, where the great majority of U.S. blacks lived between 1865 and the 1960s, the general run of white people held views that adversely affected the well-being of black people—to put it mildly. The best friends the blacks had among the Southern whites were members of the local ruling class—big landlords, merchants, manufacturers, railroad operators, and so forth. Absent the domination of local politics by these oligarchs, the economic conditions of blacks would have been much worse. Given the operation of the type of simple democracy that MacLean adores, the South would have been an immeasurably worse hell for blacks that it was—and it was plenty bad as it was.

The post Simple Democracy versus Racial Justice in the USA appeared first on The Beacon.

For the first group, which for the most part tries to be “law-abiding” and supportive of “law enforcement,” the laws, regulations, and cops are obnoxious at times, but not for most people intolerable. People get used to being told what they must do and refrain from doing. They may grouse about certain laws, but they remain loyal to the political and governmental system that puts those laws in place and oversees their enforcement. These people are inclined to view instances of police abuse as the misfeasance of “a few bad apples.”

The second group has a clearer view of reality. They understand for the most part that the laws and the cops are not there for their protection, and indeed are part of an overall arrangement that looks all too much as if it were deliberately designed to humiliate, oppress, and persecute them, often in the guise of enforcing drug laws or petty commercial regulations that act as barriers to their self-employment or operation of small businesses. To members of this group, the cops are an army of occupation, and the disproportionate number of blacks and Mexicans in jails and prisons as well as the various state and local convict-labor arrangements testify fairly clearly to the correctness of their perception.

L’affaire d’Hillary, in contrast, shows that the system’s kingpins are pretty much above the laws, even the laws that they themselves have made and purport to enforce equally without fear or favor. The Clintons appear for all the world, and long have appeared, as a free-range criminal family with far-reaching elite connections—who’s to say what is bribe and what is shakedown?—amounting to what might well be described with a nod to Lady Macbeth herself as “a vast left-wing conspiracy.” So even when the FBI itself has the pelotas to report in great detail on Hillary’s law-breaking, it takes upon itself the pronouncement that a prosecutor would not have a case against her.

Meanwhile, thousands of members of the first group languish in prison for lesser offenses, and millions of the second group rot in jails, prisons, and under probation for actions that ought never to have been criminalized in the first place—above all, violations of the laws against the use, possession, and trafficking in certain substances that individuals wish to enjoy and have every right to enjoy without anyone’s molestation. But the prison-industrial system is happy, and isn’t that what counts in a system so corrupt that its stench fills the earth?

Yes, Americans purport to take great pride in possessing a system “of laws, not of men.” But it’s a gigantic joke, and not a funny one at all. It’s a rotten system from A to Z, but its rottenness bears with greatest force on those who occupy the periphery of American society, less heavily on those largely ignorant and ideologically self-blinded in the great mass of white, middle-class “respectable” people, and scarcely at all on the rich, well-connected, and politically powerful. In short, even in a country that imagined itself to be different—a city on a hill, blah, blah, blah—it turns out that things work here pretty much as they work and always have worked nearly everywhere on earth. The peasants suffer abuse and oppression, and the likes of Hillary Clinton and Co. laugh about the way things are all the way to the bank and the throne.

The post The USA’s Trifurcated Legal System appeared first on The Beacon.

Enter Paul. Paul thinks that Peter’s money could be put to better use, like helping low-income families get healthcare and putting children into preschool, among other things. As a result of his beliefs, Paul threatens Peter. Peter can “voluntarily donate” to these programs, but if he refuses, or doesn’t offer “enough” of his income, Paul will take Peter’s money anyway and hold him in captivity.

Would you consider this to be fair? Probably not. Just because Paul wants Peter to spend his money on certain honorable causes doesn’t mean that Paul has the right to take Peter’s money. Paul is stealing from Peter. He is violating Peter’s rights by stealing his property.

Most people would take issue with the above scenario. However, many people advocate this kind of activity everyday. Instead of just Paul and Peter, however, it’s Peter, Paul, and the government. Paul thinks Peter should spend his money in some particular way and Peter disagrees. Since Paul is not powerful enough to compel Peter to fork over his money for certain causes, he lobbies the government and votes to raise Peter’s tax rate.

“Peter is rich,” Paul says. “He’s in the top 20 percent of income earners! He should do his part to help his fellow man.”

This is frequent rhetoric for those who advocate higher taxes for wealthier people in society. But just because such arguments are used frequently doesn’t make them correct or give them moral traction.

If we agree that the first scenario is theft, then why does the introduction of a middleman, the government, make a difference? Theft is theft. Coercion is coercion. If you wouldn’t steal Peter’s wallet and give its contents to some cause you deem worthy, why is it OK for someone you voted for to steal it on your behalf?

I posed this very question to a friend after she told me she had voted for Obama (in 2008) because “her brother needed healthcare and Obama would create universal healthcare.” I asked her why other people should be forced to pay for her brother’s medical expenses when they are paying for their own and working to support themselves. Why is it their responsibility?

I’m still waiting for an answer to this question that doesn’t invoke emotion as its only authority.

There are two general forms of direct taxation. First, there are taxes based on a person’s ability to pay. Second, there are taxes levied in proportion to the benefits received by an individual from her fellow tax-payers. The vast majority of taxes in the U.S. (and in many countries) are of the first variety. Income taxes, for example, represent nearly 50 percent of tax revenue. These individuals aren’t likely paying for services from which they benefit, but their money is being used all the same.

I fail to see how these types of taxes represent any notion of justice or occupy the moral high ground. If we accept private property rights, then advocating for increased taxation because “someone should give up more of their money” or they aren’t paying the “fair share” (a totally vacuous concept) is advocating theft.

Taking from someone who has earned a great deal of money to give it to the poor, doesn’t make a robber a moral person. It makes him a thief! Calling on the government to rob Peter on Paul’s behalf doesn’t magically make the situation morally good.

As the late economist Murray Rothbard said,

Just as no one is morally required to answer a robber truthfully when he asks if there are any valuables in one’s house, so no one can be morally required to answer truthfully similar questions asked by the State.

Run, Peter!

The post Taxation and Wealth Redistribution as Lowbrow Morality appeared first on The Beacon.

The most recent Hugh Jackman vehicle is very good in its own right—good acting, real plot, and decent special effects (by contemporary standards). Many may think the ninja theme and fighting is a bit overwrought. (But then again, when was a ninja movie ever understated?) At least this time it’s a fantasy character thrashing all of those trained assassins and Yakuza thugs, and there’s no pretense of realism. But a lone man fighting off evil (including a very high ranking corrupt politician) doesn’t necessarily make a libertarian movie.

Rather, the libertarianism in The Wolverine was much more subtle and perhaps more relevant as a result. The main values-based theme behind the movie hinges on the Samurai ethic. The Samaurai were Japan’s medieval knights, professional warriors tithed to do the bidding of their very human lords and feudal masters. The Samurai have achieved mythic status because they were highly trained soldiers while adhering to a very strict code of honor, loyalty, and integrity. Indeed, the loyalty was so severe that once a Samurai’s master died, he was expected to commit suicide.

And that’s where the libertarianism comes into The Wolverine.

Some Samurai decided to forgo the ritualistic suicide and strike out on their own. These wayward Samurai were called Ronin, and the term was initially derogatory (concocted as a way to stigmatize Samurai who didn’t follow the feudal warrior program). But, they were Samurai, nonetheless, and while they no longer served a master, they were expected to conduct themselves as honorable Samurai.

This is where Logan, the Wolverine, comes into play. He is a loner with a strange curse of a superpower (metal talons that are both deadly and difficult to control and the immortality that comes with being able to heal naturally and quickly). He has no master, but he is a soldier. In short, he is a Ronin.

Others might call Logan a vigilante, someone seeking justice outside the formal trappings of the legal system. That’s way too simplistic, as the explicit tie to the Samurai makes clear. The interesting twist is that Samurai aren’t seeking revenge or retribution; they are morally bound to seek justice. Even if a Samurai seeks “revenge,” his purpose is to restore social balance and achieve justice. The Samurai are not lawless in the abstract sense of the term either: They adhere to a moral code that is well defined and strict. They follow a private, rather than a public, law.

These are the ideals that form the core plot of The Wolverine—honor, integrity, moral corruption, and justice. They unfold in a layered way throughout what I found to be a very entertaining and engaging movie. Indeed, I didn’t even draw many of these connections until I was deep in discussion with my aspiring filmmaker son after we had left the movie.

Nonetheless, these elements of the plot are unmistakable, and the movie would serve as an engaging platform on which libertarian notions of social responsibility, individualism, law, and the scope of private action in seeking justice could form. It’s for these reasons that I will likely put The Wolverine on my list of libertarian movies.

The post <i>The Wolverine</i> and the Implicit Libertarianism of the Wayward Samurai appeared first on The Beacon.