Opinion in TCash101 v. Southeast

[Emsworth]

The Chief Justice delivered the opinion of the Court, in which Justice Colin Wixted joined. Justice TexasGurl dissented.

Part I
In November 2005, the Southeast Region passed Initiative 104, the Liberty of Contract Initiative, which read as follows:

Section One

It shall be lawful for any private business to deny an individual employment on the basis of membership or non-membership in a union or other labor organization.

Section Two

The Right-to-Work Initiative is hereby repealed.

Alleging that the initiative violated Article VI, Clause 10 of the Constitution, TCash101 filed a lawsuit against the Southeastern Region on July 15, 2006. The clause reads: "Persons in employment shall have the right to organize for the purpose of collective bargaining, with such exceptions as the Senate may provide for by Law on the grounds of vital national interest." The Court accepted the case for consideration.

Part II

The Constitution of Atlasia is a document that establishes the framework of the government, and regulates the actions that the government may undertake. It is not meant to be a code of rules that governs the actions of private individuals. Hence, when the Constitution declares that an individual has a right, it means only that the right exists against the government.

The plaintiff points out that some provisions of Article VI begin with the words "No agency of government shall...," while others do not. He suggests that, because the Collective Bargaining Clause does not include these words, it applies to private parties as well. However, we do not believe this argument to be correct. The rule of construction articulated above applies equally to all clauses in the Bill of Rights, regardless of whether they specifically refer to the government.

If the plaintiff’s interpretation were correct, then the guarantees Bill of Rights would be strikingly inconsistent. It will be noted that the Due Process Clause begins with the words, "No agency of government shall...," while the Collective Bargaining does not. Therefore, if we were to apply the plaintiff’s logic, we would conclude that the former clause binds the government alone, while the latter binds both the government and private parties. Consequently, it would be unconstitutional for an employer to fire an employee for joining a union, but it would not be unconstitutional for an employer to kill the employee. It is highly unlikely that those who framed and ratified the Constitution intended for such an extraordinary inconsistency.

We do not intend to say that the Collective Bargaining Clause only applies to those in public employment. The government may not prevent individuals from unionizing, whether those individuals are in public or in private employment. However, while governments are forbidden from discriminating against union members, private individuals and organizations are not. (Analogously, governments may not discriminate against on the basis of religion, political affiliation, race, sex, or firearm ownership, while private parties may certainly do so.)

Having established that the Collective Bargaining Clause does not impose any obligations upon employers, it becomes clear that the Liberty of Contract Initiative is constitutional. The initiative does not prohibit individuals from joining unions, or from participating in union-related activities. It does not in any way punish those who engage in collective bargaining. Rather, it merely allows employers to hire or not hire such individuals as they please. Under the initiative, if an employer desires to hire only union members, he may do so; and if he desires to hire only non-union members, he may do so. Guaranteeing employers such liberty in no way affects the rights of the employees.
 
As the initiative neither deprives any person of constitutional rights, nor violates any particular constitutional provision, it is sustained.


Statement by the Chief Justice:
Although I was the author of the initiative challenged in the above case, neither party requested me to recuse myself. Accordingly, I decided that it would be appropriate for me to participate.

[The Dowager Mod]

Dissenting opinion

According to Article VI section 10: Persons in employment shall have the right to organize for the purpose of collective bargaining, with such exceptions as the Senate may provide for by Law on the grounds of vital national interest.

According to the Southeast law: It shall be lawful for any private business to deny an individual employment on the basis of membership or non-membership in a union or other labor organization.

Since these two laws are contradictory and Federal law takes precedent, The Southeast law should be considered null and void.

The Southeast law allows businesses to discriminate against potential employees if they are or wish to be members of a union, which would seem to violate Aticle VI section 10.

[jokerman]

I don't believe that this is a sound decision.  I believe that the part declaring the ability of an business to deny employment based on "membership" is unconstitutional. 

[jerusalemcar5]

This makes me proud I voted to confirm Texas Gurl, and realize my vote on Emsworth may have been an accident.  I have never seen such a blatant violation of the Constitution.  it is open and shut.  I also believe Emsworth should have had enough mind to recuse himself from the case, or at least make everyone very aware he had written the initiative, because I did not know.  I support the comments of others that the Court was usuing judicial activism, not sound constitutional judgement, to rule on this case.

[Emsworth]

I also believe Emsworth should have had enough mind to recuse himself from the case, or at least make everyone very aware he had written the initiative...

The plaintiff was aware that I was the author of the initiative. He did not ask me to recuse myself. Accordingly, I did not recuse myself.

It will be observed that the jurisprudence of the Supreme Court of the United States is consistent with this decision. "[T]he due process clause of the Fifth Amendment [...] limits only federal governmental action and not that of private parties, as is true of each of the provisions of the Bill of Rights." (Source: The Library of Congress' Annotations to the Constitution) There is no distinction between the Atlasian and the American Bills of Rights that justifies a departure from this general principle.

[TomC]

I agree with Preston and Jcar that this is not a sound decision and puts our enumerated rights at risk. However, I was quite aware that Emsworth authored the Liberty of Contract Initiative, and I did not ask him to recuse himself from the case; I did ask that he not submit testimony as to the intent to or interpretation of The L of C initiative if he intended on writing the opinion.

I thank the Justices for their time.

[Peter]

I agree with the Court's judgement. The Constitution does not require private entities to be Union-neutral, it requires the government to allow them to exist (and on the other hand could not force Union membership on people).

Justice Texasgurl's dissent is lacklustre and fails to provide any justification for applying the Clause 10 to private entities, whereas the majority provides plenty of justification for not applying it.

It was erroneously suggested by TCash at argument that for the Court to rule as they have done, they would have to recognise a federal right of employers to fire unionised employees. As we can see, the Court makes no such assertion, and frankly I do not believe it could.

The Constitution does not insulate one from consequences of exercising your constitutional rights, it just provides that you have the rights, but you must live with the consequences.

[Ebowed]

I support the comments of others that the Court was usuing judicial activism, not sound constitutional judgement, to rule on this case.

Do you even know what judicial activism is?

[jerusalemcar5]

I support the comments of others that the Court was usuing judicial activism, not sound constitutional judgement, to rule on this case.

Do you even know what judicial activism is?

Yes it is when you put personal feelings ahead of the law in order to amend, uphold, or create laws.

[Speed of Sound]

Note to self: make sure I bring up a similar case when Emsworth or Colin leave.

I support the comments of others that the Court was usuing judicial activism, not sound constitutional judgement, to rule on this case.

Do you even know what judicial activism is?

Yes it is when you put personal feelings ahead of the law in order to amend, uphold, or create laws.

Alternative definition: see TCash101 v. Southeast

[Ebowed]

Yes it is when you put personal feelings ahead of the law in order to amend, uphold, or create laws.

And you're going to say this is what happened every time the Court hands down a decision you disagree with, correct?

[The Dowager Mod]

I agree with the Court's judgement. The Constitution does not require private entities to be Union-neutral, it requires the government to allow them to exist (and on the other hand could not force Union membership on people).

Justice Texasgurl's dissent is lacklustre and fails to provide any justification for applying the Clause 10 to private entities, whereas the majority provides plenty of justification for not applying it.

It was erroneously suggested by TCash at argument that for the Court to rule as they have done, they would have to recognise a federal right of employers to fire unionised employees. As we can see, the Court makes no such assertion, and frankly I do not believe it could.

The Constitution does not insulate one from consequences of exercising your constitutional rights, it just provides that you have the rights, but you must live with the consequences.

Guess it's a good thing i do not care what you think then.

[jerusalemcar5]

Yes it is when you put personal feelings ahead of the law in order to amend, uphold, or create laws.

And you're going to say this is what happened every time the Court hands down a decision you disagree with, correct?

No, I disagreed with their decision against me that the Senate only needed 6 votes to override yet that was backed up by a reasonable Atlasian constitutional argument. 

This law allows employers to deny employees the right to collective bargaining because they can fire them for excercising their rights under the constitution.  Employers cannot deny someone a constitutional right.

This is similar to saying an employers can ban an employee from practicing a religion. Disgusting.

[Democratic Hawk]

Given the Supreme Court's ruling, I suggest the only cause of action is to seek a repeal of the Southeast's Liberty of Contract Initiative (104)

And as a citizen of the Southeast, I will wholeheartefly support any effort to do this. For a company to deny any individual employment on the basis of their union membership, or not, is clearly an affront that on that individual's rights to be a member of, or not be a member, of a labor union

Mind you there should be no such thing as a closed-shop either; but should any individual not wish to join a labor union and, consequently, don't receive the benefits of collective bargaining then they have no cause for complaint

Of course, I take a moral standpoint rather than a constitutional one

Dave 'Hawk'

[Colin]

Note to self: make sure I bring up a similar case when Emsworth or Colin leave.

I support the comments of others that the Court was usuing judicial activism, not sound constitutional judgement, to rule on this case.

Do you even know what judicial activism is?

Yes it is when you put personal feelings ahead of the law in order to amend, uphold, or create laws.

Alternative definition: see TCash101 v. Southeast

I take complete offence to that. Article VI of the Constitution, as is true with the rest of the Constitution, only pertains to the activities of the government. Article II, which is concerned with the office of the Presidency, does not apply to CEOs so why should Article VI be anything different? Article VI states the limits and parameters of constitutional governance within Atlasia. From its first clause which establishes that the Government of Atlasia cannot abridge the freedom of speech, free expression and press, which seems to be coming up now in the Articles of Impeachment, to the final clauses dealing with the desparagement of rights and the denial of the right to vote. All of them deal specifically with the government.

In order to actual believe the arguement made by the opponents of this case we must first off believe that Article VI is completely different from the rest of the Constitution because it applies to everyone who is currently in Atlasia. In my view this would be preposterous since the rest of the Constitution has nothing to do with private matters and private business and property.

Just like the rest of the Constitution Article VI deals with the Atlasian government and sets limits and barriers to government power and intervention in much the same way as Article I, Sections 5-7 set up limits and barriers to Senatorial legislative powers. In my view Article VI is no different than the Powers Sections in Article II only Article VI deals with the entirity of the Atlasian government while the powers sections of Article II only deal with the Senate.

[Sam Spade]

Geez, what whining crybabies.  It's kind-of-obvious this decision was the correct, narrow ruling.

[Ebowed]

For a company to deny any individual employment on the basis of their union membership, or not, is clearly an affront that on that individual's rights to be a member of, or not be a member, of a labor union

One could also say that for the government to deny an employers' right to discriminate against persons on the basis of membership in a union is clearly an affront on his right to run his business as he sees fit.

[TomC]

Geez, what whining crybabies.  It's kind-of-obvious this decision was the correct, narrow ruling.

I don't see anybody quitting his post or deregistering over it. With all due respect, Sam, you've had your fair share of griping.

[Sam Spade]

Geez, what whining crybabies.  It's kind-of-obvious this decision was the correct, narrow ruling.

I don't see anybody quitting his post or deregistering over it. With all due respect, Sam, you've had your fair share of griping.

Respectfully, TCash, my quitting of my post and deregistering had little to do with the decision in that case, although the timing seemed to make it so.

It had much more to do with a realization of my continued disinterest in the game and my preparation for my soon-to-be-super-busy schedule in a couple of months that caused me to do such.

The last week's events piqued my interest in the game again when I noticed them, so I decided to give it another shot.  So far, I'm still interested, we'll see if it holds.

[Bono]

Given the Supreme Court's ruling, I suggest the only cause of action is to seek a repeal of the Southeast's Liberty of Contract Initiative (104)

Whiuch should have been what you do in the first place, instead of conspiring against the rights of southeasterners by doing these sneak, treacherous actions.

[Bono]

I think this decision forgts to focus that the Federal Bill of Rights doesn't apply to the regions, creating a dangerous precedent. Of course, since this is the same court that ruled that basically everything are items of commerce that can be regulated, I shouldn't feel surprised.

[Peter]

For a company to deny any individual employment on the basis of their union membership, or not, is clearly an affront that on that individual's rights to be a member of, or not be a member, of a labor union

One could also say that for the government to deny an employers' right to discriminate against persons on the basis of membership in a union is clearly an affront on his right to run his business as he sees fit.

This line of reasoning, as has been explained, should lead to the opposite result. If it is the duty of government to positively protect rights from encroachment by non-governmental bodies then an explicitly protected right in the Constitution should trump some implicit right that we are asserting.

This law allows employers to deny employees the right to collective bargaining because they can fire them for excercising their rights under the constitution.  Employers cannot deny someone a constitutional right.

This is similar to saying an employers can ban an employee from practicing a religion. Disgusting.

If only the Constitution were concerned, then employers could ban pracitising of a religion, however, there are often statutory protections for employees. That is why employers cannot ban practising religion, not some positive duty of protection in the Constitution.

Given the Supreme Court's ruling, I suggest the only cause of action is to seek a repeal of the Southeast's Liberty of Contract Initiative (104)

Whiuch should have been what you do in the first place, instead of conspiring against the rights of southeasterners by doing these sneak, treacherous actions.

Says the person who infamously sat silently throughout Supersoulty's Unwed Mothers Bill and then walked into the Supreme Court shortly after passage to get the Bill overturned.

If you're going to attack people for "sneak[y] actions" or failing to seek legislative remedies first (over judicial ones), at least be consistent and mention that you did it yourself.

[John Dibble]

Justice Texasgurl's dissent is lacklustre and fails to provide any justification for applying the Clause 10 to private entities, whereas the majority provides plenty of justification for not applying it.

Guess it's a good thing i do not care what you think then.

You might want to start caring TexasGurl - it's valid criticism, no offense intended. You state that the law and the constitution are in contradiction, but you really provide no argument as to why. The other side however provides many arguments as to why they are not in contradiction. In debate you must use arguments based on evidence and logic to prove your points, and your dissenting opinion is certainly lacking in those departments. Unless people already believe what you have to say, you won't be that convincing.

[TomC]

For a company to deny any individual employment on the basis of their union membership, or not, is clearly an affront that on that individual's rights to be a member of, or not be a member, of a labor union

One could also say that for the government to deny an employers' right to discriminate against persons on the basis of membership in a union is clearly an affront on his right to run his business as he sees fit.

And this argument could be used against the setting of a minimum wage as well- that it is an affront on a businessman's right to run his business- and set wages- as he sees fit. (It also undermines an employee's right to negotiate wages and set them low to be more competitive, which seems silly but happens every day in the U.S. and elsewhere) But I'm not sure where the "right to run his business as he sees fit" emanates from- is it the "life, liberty, and property" clause? Several examples in the case argument thread seem to imply so, but I don't see that having the right to own property is synonymous with having the right to use that property to become an employer- I'm not saying that right doesn't exist, but it's just not inherent in the "life, liberty, and property" clause. In real life, there is no absolute right to run a business- you must get a license, granted by a government, and by getting that license you agree to certain standards of conduct- much like you agree to certain standards of conduct when you get a driver's license.

[The Dowager Mod]

Justice Texasgurl's dissent is lacklustre and fails to provide any justification for applying the Clause 10 to private entities, whereas the majority provides plenty of justification for not applying it.

Guess it's a good thing i do not care what you think then.

You might want to start caring TexasGurl - it's valid criticism, no offense intended. You state that the law and the constitution are in contradiction, but you really provide no argument as to why. The other side however provides many arguments as to why they are not in contradiction. In debate you must use arguments based on evidence and logic to prove your points, and your dissenting opinion is certainly lacking in those departments. Unless people already believe what you have to say, you won't be that convincing.

I just don't need to post two pages of legalese crap to get my point across.
And i don't need to convince Peter Bell of anything just Emsworth and Colin.