Monday, November 5, 2012 | 2 comments

Liberty IS Violated: Highland Business Closure is Illegitimate

By Jeremy Lyman

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In July we published a post urging Highland City residents to oppose efforts to reinstate a city ordinance restricting the right of private individuals and businesses to engage in peaceful commerce on Sunday.  I argued then that the most basic principles of private property rights demand that property owners have the right to complete control over their own property, their own buildings, and their own businesses, so long as they leave intact the rights of others.  In addition to analyzing the principles of private property rights, I also examined the teachings of the Church of Jesus Christ of Latter-day Saints, the predominant religion in the area, and found that the basic principles espoused by that church do not support coercion as a means to force people to observe the Sabbath.

Last week, the Sutherland Institute published an article with the title No liberty is violated by Highland’s Sunday closures. In that article, Sutherland president Paul Mero argues just that—that no liberty is violated by using the force of government, at the barrel of a gun, to prohibit otherwise peaceful individuals from using their private property as they see fit, from engaging in the peaceful and consensual exchange of goods and services, and ultimately from having complete control of their own bodies, forcefully removing the possibility for those that want to work on Sunday in Highland of legally doing so.

After reading the article I was tempted to leave it alone as suggested by a Facebook user on a thread discussing the article:  ”Funny article. I wonder if it was written by the Onion [a satirical news and commentary site]. I don’t think it requires a response, it was probably a joke.”  Thinking that it was not satire, and that Mero was actually claiming that liberty is not affected by government-enforced Sunday business closure, I will respond by highlighting a few of his clear flaws in logic.  In my opinion, Paul Mero looks for arguments to justify his position rather than using logic to arrive at a position.

He begins his article with a statement about the residents of Highland, stating, “They alone will decide.”  This introduction to the issue is likely meant to appeal to a base that already believes that democracy, in its pure form, reigns supreme.  In other words, he believes that if a majority of Highland residents prefer to observe a day of rest, then they have the moral authority to compel their dissenting neighbors to follow suit. This position of supporting the majority vote whatever the issue is advanced by its proponents as a just means to virtually any end. This is, on a smaller municipal level, nothing more than the tyranny of the majority.

In his second paragraph he asserts that “no resident’s liberty is being violated by maintaining the Sunday closure regulation.”  This assertion is patently false, but I believe it also demonstrates (again) Mero’s tendency to lift democracy up, without the proper restraints that would protect individual liberty, as an end unto itself. Slavery would be no more just if the majority favored it than if only a small minority did.  The injustice endured by the slave is likewise no different whether the practice is supported by 99% of voters or just 1%.  Mero focuses on Highland residents because he wants them to consider themselves a collective. He wants them to feel justified in forcing the minority to conform to the will of the majority, and in doing so claims that this forced conformity does not violate liberty? This hardly seems rational.

In reality, this issue is not just about Highland residents.  It is true that they are the ones who will vote on this specific issue and ultimately determine the immediate outcome, but the ordinance in question does not apply to any one group of people, certainly not just to Highland residents. It applies to others as well. Many people, Highland resident or not, will be controlled by government, forbidden under punishment of law (which ultimately derives all of its control over its subjects with the threat of violence) to work, shop, or control their own private property as they might desire, on Sunday in the City of Highland. Non-residents of Highland may own property in Highland. The rights that they should enjoy as private property owners should not be reduced or somehow diminished based on their place of residence.  Non-residents of Highland have every right to engage in peaceful commerce in Highland on Sunday.  Non-residents of Highland have every right to offer their services to employers in Highland that might choose to employ them on Sunday.

Many have wondered why such a seemingly insignificant issue is worthy of so much attention and political activity. There are plenty of bigger “fish to fry,” for sure, but this issue serves as a microcosm for understanding the problems behind the more significant issues of the day. To the extent that simple majorities can violate the liberty of their dissenting neighbors, and while doing so, have the audacity to claim that they aren’t actually doing so, they will continue to do so unabated on issues both big and small. Focusing on these smaller issues where the effects are more acute and recognizable often serves to help illustrate the fundamental principles more easily.

No individual possesses authority allowing them to stop another person from engaging in commerce with another consenting person. If a number of individuals, who each alone has no right to enjoin another from engaging in peaceful commerce, come together and act under the color of government, since they individually had no right to unilaterally stop others from engaging in commerce they cannot suddenly possess this right merely because they are acting as a group.  It wouldn’t matter if they represented a small percentage of the population or a great majority of the population.  They cannot clothe government with authority that they themselves do not possess.

The first few paragraphs of Mero’s article simply assert that “there is no liberty interest” involved here.  He doesn’t tell us why.  He just states boldly that it is so.  Because he said so, I guess.  After that, having accepted that his premise must be right, he asks the question, “So why do these regulations tug at the liberty interest?”  Perhaps he means: why do some people claim that there is in fact a “liberty interest” at stake in such an issue?

His first answer to that question is that “none of us wants to be told what to do. Ever.”  This is true, but what is more important than what each of us wants is the entire concept of freedom and liberty.  Liberty and freedom rely on the assumption that not only do we not want to be told what to do (ever), but that none of us has an inherent right to tell others what to do (so long as they are not violating the rights of others).  Of course, by using the term “told what to do” we water down what we really mean.  His sentiment would be better stated, “…none of us wants to be forced to do something we don’t want to do.”  After all, the proposal is not to have the City of Highland tell people what to do, but rather to have the City of Highland force people not to do business on Sunday.  If a property owner ignores the majority-supported mandate, he will ultimately face armed law enforcement officers, and if he continues to resist, he will be met with violence, physically detained, possibly put in a cage, and in fact, if he defensively resists with force, asserting his own natural rights, he could be killed on the spot.

Highland City residents would be wise to consider whether this can possibly be justified. Would any of them feel justified in taking up arms against their neighbor for doing nothing more than engaging in the peaceful exchange of goods and services on Sunday?  If they wouldn’t, then why would they possibly feel justified in delegating the same task to a government agent?

Mero’s second answer to his proposed question is “that this liberty interest could be at risk if authorities decided to shut down all marketplaces and the freedom of association and trade an otherwise live your life ALL of the time.” He actually makes a great point here.  If a majority of citizens has the right to arbitrarily force everyone to stop doing business on one day of the week, then based on all of the same arguments, and for all of the same reasons, they would have every bit as much right to restrict business on two days of the week, or three, or seven. Why not?  Take any of the arguments made in favor of the restriction and replace the word “day of rest” with “two days of rest.”  This does not fundamentally change the argument.  In fact, the logic does not change at all.

Highland City residents should ask themselves, would any of them feel justified in restricting businesses for two or three days each week?  If not, what is the difference between choosing a 24-hour period out of every 168 hours rather than a 30-hour period, a 40-hour period, or a 72-hour period?

Mero dismisses his own argument by admitting that “there is a line that can get crossed — a line between constructively creating a unique community and unconstructively creating a unique community.”  And who gets to decide where that line is? According to Mero’s arguments, not surprisingly, it is simply up to the majority to define what is “constructive” and “unique” and worthy of forcing upon the dissenting minority.  In other words, there is no rational basis by which to draw a line between tyrannical control by the majority and what he terms “constructively creating a unique community.”  Clearly, if the majority has the right to authorize government to use force to prohibit commercial activity on one arbitrary day of the week, then by that same right they could restrict another day or many days.

Tangentially, it is interesting to observe that throughout his article Mero refers to opponents of Sunday closure laws as “my freedom-loving friends” and “freedom-loving people.”  I suppose he is admitting that those who promote Sunday closure laws are clearly not freedom-loving people.

He goes on to admit that most proponents of such laws focus only on the rights of would-be shoppers and ignore the rights of the property owners.  I applaud him for this truthful admission. Most arguments in favor of restricting Sunday business in Highland involve assertions that people can simply shop somewhere else if they insist on shopping on Sunday.  This assertion ignores the property owners who have the right to control their own property every day of the week, including Sunday.

Mero states, “I believe property rights are increasingly and unnecessarily diminished these days. I believe property rights are the basis of economic freedom.”  I couldn’t agree more.  Unfortunately, he then does a 180 degree turn and asserts that, “interestingly enough, we don’t have a right to sell appropriate products whenever we want, including on Sundays.”  He provides no rational basis for this assertion. It seems to be another assertion that, since it was made by him, needs no rationale. Forgive us for not readily agreeing with a simple, self-contradictory pronouncement.

Mr. Mero makes an argument that “generally speaking a business that sells bread or tires or cough syrup hardly has a claim on Sunday as a ‘sacred’ day to do business.”  What he means (I think) is that most businesses can engage in commerce any other day of the week that they want, and they have no special need to do business on Sunday. This presumes, apparently, that we should rely on government central planners or simply the will of the majority to make business decisions for business owners, and tell people when they need or should desire to obtain certain goods and services. It’s as if proponents of Sunday closure laws are saying, “Silly business owners! You have no reason to even do business on Sunday. And if you can’t figure that out on your own, then we’ll use guns to help you understand!”

Mero states “I think it is entirely appropriate to pass just laws that reflect the common will of the people.” This statement would be much improved had it inserted a period right after the word “laws.”  We can agree on that much. But as argued above, there is nothing just about the majority imposing their will on the minority.  Calling it “the common will of the people” sounds great as long as you are one of those people.  What if the common will of the people prohibited the use of residential property every Tuesday?  Substitute every argument made in favor of the Sunday business restrictions with an argument to lock down all residential properties on Tuesdays. Nobody goes home on Tuesday. What’s wrong with that if that’s what the majority want?  If we’re going to promote one day of “rest”, why not promote one day of no rest?  It may not reflect your personal will, but if the majority wanted it, why not?

The religiously-oriented citizens of Highland may do well to recall that the “common will of the people” resulted in forced exterminations and brutal treatment of their Mormon forefathers. Seeing virtue in majority rule is easy when you’re in the majority, to be sure, but it is not an accurate or truthful depiction of the issue.

The last statement that I wish to address is Mero’s argument that “there is a secular interest in a ‘day of rest.’  Doing so sends a communal message that there are more important things than commerce — and a free society requires more things of us humans than just commerce.  If it helps reinforce a community culture that insulates against the negative effects of modernity.”  Engaging in the exchange of goods and services is not product of modernity.  It is as ancient as the existence of mankind.  And so is the natural inclination of man to control other men.

We encourage our freedom-loving friends (we have no hopes of influencing those who do not love freedom) to support Proposition 6 in Highland in order to put an end to an illegitimate use of coercion against peaceful Highland business owners.



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About the Author

Jeremy Lyman is Director of the Center for Private Property. For the past nine years he has held a real estate license in the State of Utah and has served on the board of directors for the Salt Lake Board of Realtors®, the Utah Association of Realtors®, and the National Association of Realtors®. He is currently the CEO for Blue Mountain Hospital, a Critical Access Hospital located in Blanding, Utah.


1 comments
RodJohnson1
RodJohnson1

Every law limits freedom of somebody, and this case is not fundamentally different than any other law other than the fact that it limits the freedom of larger percentage of the population than other laws would.  Although I would not want this law in my city, the freedom and liberty components of this law are not fundamentally different than any other just law that make society work.

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