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Monday, June 4, 2018

Colorado Baker: It's About Property Rights

The long anticipated SCOTUS ruling in the Masterpiece Cake Shop case out of Colorado is finally out, and pundits from all walks of the public debate have pitched in. Some, like Thomson Reuters, are of the opinion that this case 
along with similar cases around the country, is part of a conservative Christian backlash to the Supreme Court's gay marriage ruling. Phillips and others like him who believe that gay marriage is not consistent with their Christian beliefs have said they should not be required to effectively endorse the practice.
Others, like the Alliance Defending Freedom, believe that this ruling is a step in the direction of more tolerance. This seems to be what the Supreme Court had in mind when seven out of its nine members explained that the Colorado Civil Rights Commission, in its lopsided favoring of the gay couple and virtual witch hunt of the baker,
violated the State's duty under the First Amendment not to base laws or regulations on hostility toward a religion or religious viewpoint. The government, consistent with the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. ... the record here demonstrates that the Commission's consideration of Phillips' case was neither tolerant nor respectful of his religious beliefs. 
Some analysts who have read the entire case suggest that it tries to establish that tolerance is a two-way street where conflicting ideas have to try to meet, get along and respect each other. This is, of course, correct: a free society stands and falls with the ability of its individual citizens to live side by side in peace, harmony and mutual respect.

The one question that the Court does not appear to address - nor should it - is how this brokering of conflicting viewpoints should take place. Normally, this takes place on a daily basis between citizens themselves, where a gay man does not throw bigoted slurs at his Muslim neighbor, and the Muslim man treats his gay neighbor with the same respect he would another Muslim. When government starts socially engineering society, conflicts arise as a result, creating tensions such as the one over the Colorado wedding cake. 

Once those tensions are established, it is not possible to solve them by pulling the same strings that created those tensions in the first place. The demand on one group to actively support another group in order to establish its tolerance of said group - which is what the Colorado Civil Rights Commission did - is an immoral government act that is not mitigated by government pushing the tolerance dividing line further toward the limit. This only reinforces the underlying social-engineering effort and perpetuates the conflict by making it into a debate over how to measure tolerance.

Already in 2015, in the gay marriage ruling, Justice Thomas predicted that tolerance would be a playground for social-engineering conflict. He has now been proven right, and if his wisdom is any guidance, we can expect a flood wave of new litigation to move the battle line back and forth along the tolerance spectrum.

There are only two ways to solve this problem: either government goes all out social justice, which it will next time Democrats hold both the White House and Congress; or we use a different method to solve conflicts of interest between individual citizens. Since the former is a death knell to our constitutional republic and an affront to the very foundation of a free society, the latter is the only reasonable way to move forward. 

The only question is what method of conflict resolution should replace tolerance. Fortunately, the Colorado baker case offers an easy transition into it: property rights. 

To get to the application of property rights in this case, let us first split the tolerance dimension into two parts. The first is best referred to as "respect": two neighbors respect one another by leaving one another alone unless asked for help or approached for any other mutually gainful interaction. (Sounds technical, but let us keep it at the logical level as a straight path to the application of property rights.) In return for leaving one another alone, the two neighbors do not interfere with one another's lives, whether it be the daily schedule or lifestyle choices.  

We define the second part of tolerance as "ethical planning". In this case, government adds a preference to the relationship between the two neighbors. It is no longer sufficient that they respect one another: neighbor A is now supposed to actively show support for a life choice that neighbor B has made. Government mandates that A takes ten minutes out of his day, every day, to bring a specific item to B. It does not matter what the item is; what matters is that government mandates that he provide this service, or else he will be defined as intolerant of B's life choice (to which the item is relevant).

The service that A provides B with, the production side of which is "labor force" in economic theory, is uncompensated time. This means that A is either giving up part of his income or giving up part of his time with family, which he has earned by paid work. In both cases, A is forced to reallocate his labor force according to a government mandate. 

A person's labor force is his property. The person buying his time in an employment contract does not own the labor force, but the product that it leaves him with at the end of the workday. The separation may seem eclectic but it has a direct and profound meaning for our Colorado baker case. When the state of Colorado, through its civil rights unit, sided with the gay couple against the baker, it said two things that have not been spelled out so far:

a) the baker had an obligation to provide the product that the couple bought; and
b) the baker thereby had an obligation to use his labor force accordingly.

The government of Colorado only considered the first part of this mandate, not the second. However, since the baker could only provide the cake by either baking it himself or paying a third party to do it, the inevitable effect was that government mandated how he use his labor force. Purchasing the cake from a third party would have required the baker to reduce his own revenue from his work, money and time he could otherwise have spent as he pleased. Even if he would have been compensated at the point if final sale of the cake, it still required him to use his labor force in a way that he did not find morally acceptable.

By dictating how the baker use his labor force, the government of Colorado violated the baker's right to his own property. Once this barrier is breached for ethical planning purposes, the government could dictate all kinds of labor force application for socially engineered goals. Suppose, for example, that Jack is a skilled tool manufacturer and Joe runs a tool machine shop. Joe offers Jack a job but Jack turns it down. If government can force the allocation of labor, it means that it can now force Jack to accept Joe's offer. 

Admittedly, this is viewing the property rights issue in isolation from the ethical-planning part of the problem. However, the consequence of ignoring the property rights part is that the violation of the Colorado baker's property right - his right to allocate his labor force according to his own preferences - remains unsolved for the future "tolerance" battle. This, in turn, means that government still has the right to force allocation of property, such as but not limited to labor force. (His entire business with both labor and capital was subject to forced use.) If the case had been brought to the Supreme Court on property-rights grounds, and the ruling had been similarly in the baker's favor, it would have drawn a firm line between the two parties: a man's labor force, as currently used or as cumulatively built (in the form of his business capital) is not subject to forced allocation.

In this general form, such a ruling would have had sweeping consequences for, among other things, taxation. However, it could have been narrowed down to apply to cases of exchange between two parties on a free market, such that property rights must be absolute or exchange is not voluntary. The buyer of a wedding cake has no right to force the seller to accept his offer of gainful exchange. 

By using property rights, not tolerance, as the basis for solving conflicts of interest, we as a society can deflate the social-engineering balloon that government has been pumping hot air into for the better part of this century. We can draw an absolute line for tolerance activists to walk, and we can send the message that private citizens who aspire to be adults must learn to live as good neighbors, or risk far-reaching consequences when the powers of government are expanded deeper and deeper into the realm of ethical planning. 

After all, there is really only one rule in politics: never give government powers that you would not trust in the hands of your worst ideological adversary. 

The SCOTUS ruling in the Masterpiece case is positive in that it attempts to put some kind of leash on social engineering. However, it is as certain as death and taxes that this was only an opening salvo in an ethical-planning war that is going to last for years, even decades. Unless, of course, someone comes up with the brilliant idea to solve the conflicts with property rights...

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