Winter 2020

A Conflict Of Visions

Trust Us

As a kid riding around town in the ’80s, I listened to a lot of oldies. They were my mom’s favorite and the radio seemed permanently tuned to my hometown’s oldies station. From Patsy Cline to Motown, they made a deep mark on me and I still enjoy them decades later.

That may explain why these days I keep thinking about the short-lived but highly influential band Buffalo Springfield and their seminal song “For What It’s Worth.” In particular, it’s the song’s opening line “There’s somethin’ happenin’ here” that keeps entering my mind.

The band’s lead singer, Stephen Stills, wasn’t exactly clear what it was that was “happenin’” when he wrote the song in the mid-60s, but in the contemporary times of today, it is clear: We’re in a war of ideas.

While Pacific Legal Foundation is definitively not partisan, we’re most certainly ideological, founded on the belief that when each individual is fully unleashed to use their mind and labor as they best see fit, all of humanity will invariably flourish. At the most basic level, we believe in reason and objective reality; we believe that everyone is created—and must be treated—equally; we believe that we should create a world where everyone can be nurtured, educated, respected, and elevated by virtue of who they are—not their race, sex, or political beliefs. We believe that protecting the rights of the individual, regardless of any “group” they happen to belong to, is paramount to liberty.

That means this war is one we must fight.

It’s a clash of values, not of parties or places on the political spectrum. It’s expression against conformity, individual against collective, future against past. And it’s increasingly manifested itself and burrowed into corners of society like we’ve never seen before.

Even though he likely preferred opera to a Los Angeles-based folk/psychedelic rock band, the late Supreme Court Justice Antonin Scalia accurately described his work this way: “I attack ideas. I don’t attack people. And some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job.”

That’s us, too. We’re first and foremost a law firm. But each of the cases we bring has a corresponding underlying idea—a principle—that we are seeking to vindicate. To cede ground to those challengers who’ve called into question the foundational values of this country would admit defeat. We won’t do that.

Our battlefield is the court of law and the court of public opinion. The weapons we choose to wield are not actual armaments intended for real violence, but intellectual arguments forged with passion and tempered with relentlessness. It’s those arguments that comprise this issue of Sword&Scales. We advocate for the timeless Enlightenment ideals that have provided for the greatest progress humanity has ever seen.

We know what’s at stake and what the world becomes if we lose. We’re poised and motivated to help win this war of ideas. We know we can. We know we will.

Steven D. Anderson


America needs to remember Enlightenment ideals now more than ever

Joseph G. Lehman

Steven D. Anderson

president & ceo

THUMBING THROUGH MY third-grade son’s school materials for a lesson on voting and democracy, I was struck by something that years, maybe even months, earlier would have shocked me, but now seems unfortunately a sign of the times.

This booklet—remember, for elementary school students—wasn’t trying to evoke good feelings about how voting gives every American the right to direct how their government works. Instead, the booklet focused almost entirely on what populations didn’t initially have the vote in America. (And, strangely, it threw in a section on César Chávez’ unionization of farm workers.)

Now, it would be one thing if this was simply one booklet for one class in one school system. But it’s not. It’s part of a much larger attempt by various academics, public intellectuals, and the like to dismember the ideals at the core of our nation’s founding. There’s no doubt America is imperfect—what nation isn’t?—but that doesn’t mean we should discount or discredit the foundational principles that our country is built on.

What my son’s booklet could’ve focused on instead was the consent of the governed, the idea that power comes solely from those who are ruled, not by the whims of a ruler. It could have celebrated the fact that in America, we have every ability to change the way rulers operate when they get out of hand. The booklet could have highlighted these classic, though modern, concepts that we derived from the Enlightenment era—the ideas that made their way into the fabric of most Western democracies and most devotedly to our shores.

There may be much to discuss and debate about the men who started this nation, but there’s something on which we cannot compromise: The emblematic ideals of the Enlightenment that all men are created equal, government exists to protect our inherent and individual natural rights, and we should be ruled by reason.

These principles have made this country, for all its flaws, the greatest that mankind has ever known—providing economic, religious, social, and political freedom at a level unseen in human history. For generations, Enlightenment philosophers literally risked their lives to advance the principles of equality, sovereignty of reason, liberalism, tolerance, objective truth, and individual liberty. And those principles sparked political and social revolutions the likes of which the world had never seen before.

Yet amassed against these ideals is a fierce, loud, and sometimes violent opposition. What’s more, the challengers explicitly reject the foundational ideals contained in our Declaration of Independence and Constitution. And it doesn’t really matter whether you speak of its origin in terms of postmodernism, critical race theory, or some other formerly fringe discipline that’s entered the cultural milieu. Because each of them, at some level, shares a critical feature—that truth is relative and arguments can only be evaluated based on the identity of the person advocating them, not on the merits themselves.

The philosophical foundation of all our work at PLF is individualism. That each person has value, that each person should be treated equally, that each person has distinct hopes and dreams, and that each person should have the opportunity to flourish.

Because our work derives its purpose from the sanctity of each person as an individual, so much of the opposition’s rhetoric and activity—whether through cancel culture, overt discrimination, or even the rejection of reason, merit, and property rights—hoping to tear down our institutions is frightening. And there’s a plain reason to be alarmed: it exalts group identity over the individual, allowing a simple characteristic to define the complexities of each human being. The collective is more important than each of us.

Discussions of sensitive topics, especially race, can quickly devolve from reasonable arguments about principle and policy into ad hominem attacks on the messenger. One of the great classical liberal values is the free exchange of differing ideas, the time-honored thrust and parry of words. Debate should be encouraged. We evolve as individuals and as a nation by exchanging, debating, and embracing differing ideas. We regress by forcing others to blindly hew to an accepted orthodoxy or suffer the consequences.

Furthermore, we reject the belief that words or inaction can be violence. There is no other way for us to settle differences—in fact, there may be no way to do it without actual violence unless each of us is allowed the ability to use the written and spoken word to persuade and convince. It is the marketplace of ideas in which our words can offend, compete, and ultimately win out as knowledge.

We’re in the liberty business and, through litigation, outreach, and communications, we achieve the promises of life, liberty, and the pursuit of happiness as reflected in the Declaration and protected by the Constitution. And we do this through the peaceful means contemplated by our liberal tradition.

Thankfully, we’ve been successful, winning hundreds of cases that have vindicated the rights of thousands of people across the country, including a dozen wins in 14 tries at the U.S. Supreme Court. We’ve always been freedom fighters, so you can expect to see ever-more PLF devotion to counter this growing, existential menace. We also know that we’ll win in the end.

Property damage is a blight on our sacred right to protest

Joseph G. Lehman

Jim Burling

vice president of legal affairs

“EVERYBODY WATCHED IT burn to ashes,” said Anmol Khindri. Khindri, a Kenosha, Wisconsin, resident, watched helplessly as his family business burned down. Rioters destroyed the business, a car dealership. “Nobody did nothing about it—nothing.”

A woman who lived next door described the scene: “Flames licking the sky, and then you hear boom boom boom! Explosion after explosion after explosion.” No help came, at least not in time. When she called 911, dispatchers told her it was too dangerous for the city’s firefighters to respond. She fled her home shortly after hanging up.

The dealership was decimated, but Khindri was far from alone. Following the police shooting of Jacob Blake, several city blocks suffered massive destruction by rioters over a four-day period in late August of this year. The majority of the destruction in Kenosha hit family businesses and the mostly Black neighborhood of Uptown.

The right to protest is fundamental to our nation’s founding. Peaceful protests, especially those during America’s civil rights era, have defined our national discourse. And like the protesters and marchers of Dr. Martin Luther King Jr.’s time, many of the peaceful protesters of this summer laudably fought for true equality before the law regardless of someone’s skin color.

But riots are not protests. Property damage is not a protest. Riots and property damage are an aberration of this almost-sacred expression of our First Amendment. Yet despite rioting and property damage being despicable in every setting and context, they have had their defenders and apologists throughout our country’s history.

As horrific footage from citizen journalists went viral, two troubling perspectives began growing in prominence. The first was denying that any riots were happening at all. Instead of differentiating between truly peaceful and productive protests, and violent riots, major media outlets across the country were quick to reassure everyone that, despite what you might have heard, the violence and property destruction was “mostly peaceful.” This trope was made most apparent by a CNN chyron, “Fiery but mostly peaceful protests after police shooting.” The second troubling perspective acknowledged that riots and property damage were taking place, but argued that property damage and violence were acceptable in light of the police killings and racial injustices happening today and in our country’s past.

These misguided perspectives not only oversimplify and conflate important issues, they do damage to the causes of justice and equality.

No one should ever face discrimination because of their race, sex, or any other immutable trait. The fight against discrimination will forever be an essential tenet of individualism, and it is just as important today as it was during the civil rights movement. And just as it’s important to battle discrimination in our laws and society, it’s equally important to battle against the ideas that property (and property rights) can be damaged or destroyed as long as the cause is right.

Fortunately, even members of the media who attempted to deny and downplay the property damage done during riots have admitted their folly. CNN’s Chief Media Correspondent Brian Stelter, for example, admitted his network made a mistake by airing the “Fiery but mostly peaceful” chyron.

Unfortunately, many of the property damage apologists have held fast to their absurd positions. “It’s not counterintuitive to destroy property that isn’t valued by society,” noted Brookings Institution fellows Andre M. Perry and Jonathan Rothwell on Brookings’ website. UCLA Professor Robin D.G. Kelley wrote an article in The New York Times where he asked, “What kind of society values property over black life?”

Vicky Osterweil, author of the controversial book In Defense of Looting, goes even further and claims that looting is good because “looting rejects the legitimacy of ownership rights and property, the moral injunction to work for a living, and the ‘justice’ of law and order.” Osterweil even claims that the very concept of owning property is “innately, structurally white supremacist.”

This is a false dichotomy. By this logic, anyone who objects to violence and property damage must be an enemy to civil rights. But the American ideal of strong property rights, and the ability to build wealth through owning property, have been among the greatest tools of prosperity for people of all races in our country.

Khindri’s business wasn’t just a “car lot.”

Anmol Khindri and his family immigrated to Kenosha from India 12 years ago. By 2013, they had cobbled together enough money to buy a used car lot. They started with just seven cars, but by 2020 they had expanded considerably. About 140 cars were destroyed over the first two nights of the riots. By Khindri’s estimate, $2.5 million went up in smoke overnight. But the most traumatic aspect wasn’t about the money.

“This business, it’s not just a business,” Khindri told a local reporter in the aftermath. “We built from the ground up, We built it car by car, like tile by tile.”

A business is not just its inventory. It’s not just the bricks and drywall. It’s someone’s life’s dream. It’s thousands of hours of hard work. It’s untold stress. It’s food on the table and new ballet shoes for a daughter. It’s how communities are formed and strengthened. In other words, it is a means by which we pursue—and find—happiness.

This is a concept that crosses the political spectrum. Graeme Wood, staff writer at left-leaning The Atlantic, said it well when he criticized Osterweil’s book by saying, “When I think of riots and smashed storefronts, I think of Kristallnacht. I think of American businesses built by penniless immigrants who preferred to forfeit their vacations and weekends for 30 years rather than see their children suffer as they did; I think of these businesses ransacked in 30 minutes and left in ruins. Osterweil at least has the psychology right when she says that looting can be ‘joyous and liberatory.’ I have never seen a sullen looter, but I have seen plenty of shop owners crying next to the smoking remains of their children’s future.”

In an interview with The Federaist, Khindri’s brother Sam said, “This is not the America I came into. What did we do to deserve all this? I’m a minority too. I’m a brown person. I have nothing to do with this.”

Perhaps the most eye-opening aspect of Osterweil’s line of thinking came out in an NPR interview in which she claimed that looting was “basically nonviolent […] It’s just money. It’s just property. It’s not actually hurting any people.”

Not only is none of that true, it’s completely callous and indifferent to human life. Nonviolent protests don’t force people to spray-paint signs like we saw on buildings in Kenosha, pleading for rioters not to set any more fires: “Please, Kids Above.”

Rapper Killer Mike said it best just days after George Floyd’s death: “We have to be better than burning down our own homes, it is your duty to not burn your own house down for anger with an enemy.”

To the pundits and academics saying the riots were a desperate act by oppressed minorities: What justifies the destruction of businesses owned by immigrant families?

The Khindri family was far from the only minority-owned business to incur the misplaced wrath of rioters this summer. Run a Google search and you’ll find hundreds of stories of Black, Latino, and Asian businesses looted, burned, and destroyed.

Not that it should matter what a business owner looks like. But when so much of the riots’ destruction hurt minority businesses, homes, and neighborhoods, it exposes the lie that these crimes were justified on the grounds of racial oppression. These riots were not protests of injustice. The protesters and advocates truly fighting for criminal justice reform, police reform, and equality before the law all did so peacefully—not with bricks and Molotov cocktails.

Finally, we can reject the argument that the destruction of other people’s property is justified because rioting “works” to achieve needed policy reforms. It doesn’t. Princeton professor Omar Wasow spent 15 years researching violent and nonviolent protests during the civil rights era.

Wasow’s research found that nonviolent protests were more effective in garnering public support for much-needed civil rights goals. For instance, in 1964, Republican Barry Goldwater, who ran on a “law and order” platform, lost the presidential election in a landslide to the “champion of civil rights,” Lyndon Johnson. Wasow credits the major nonviolent protests led by Martin Luther King the previous year, such as the Birmingham campaign and the March on Washington.

Violent protests, on the other hand, tended to have the opposite effect: a stronger public sentiment for an intensifying police response to crime. Wasow cites the Watts riots of 1965 (among others) for tipping the 1968 election for the “law and order” candidate for president, Richard Nixon.

If rioters in 2020 wanted less policing of their cities, they did a whole lot to ensure that the larger public would feel exactly the opposite. But you didn’t need a sociological study to tell you that.

Owning property—and having that property protected from destruction—is one of the most-proven ways to lift individuals, families, and nations out of poverty. According to the World Bank, one of the few things almost every poor country around the world has in common is weak property rights. Why?

Peruvian economist Hernando de Soto painstakingly studied property rights and poverty in Third World nations and found that where there are strong protections of property rights, there was less poverty and a more stable middle class. Where stable governmental systems could assure clear ownership rights and where those rights were protected by the law, people could use the value of their homes and businesses to build wealth, lifting them out of poverty and into the middle class. But where ownership rights were insecure, whatever wealth may be in a poor person’s home or business was too tenuous to build upon, and the poor would remain poor no matter what the larger economy may look like.

As de Soto put it, in the West, “the legal property system became the staircase that took these nations to their full productive potential.” In other words, prosperity does not create property; instead, prosperity is the result of property being fully respected and actualized.

When we rightly complain about the lingering effects of racial discrimination, consider the causes, and how government has enabled it. From the moment that African Americans arrived on American shores, their property, labor, and—most importantly—their lives were stolen. As the years passed, discrimination—and purposefully discriminatory laws—denied many Americans an equal opportunity to create wealth through home ownership and employment. But the answer to these problems isn’t to take away the property that people (including minorities) own, either through outright destruction, or sapping the economic vitality of city neighborhoods. If property and businesses become insecure, any hope for better times will be in vain. If we don’t protect property, poverty and disparity will grow.

Our nation’s sordid history of slavery, Jim Crow, and the ongoing legacy of those injustices can never be cast aside or overlooked. But it’s important to recognize how critical the concept of property, and the property rights protected by our Constitution, are to lifting up Americans of every race, sex, and creed. The miracle of this country is that our natural rights are, as Jefferson wrote, unalienable; they are for everyone, even if the term “everyone” has needed to expand in meaning over the past 230 years. That is the genius of our system: it is capable of self-correction—“more perfect,” as the Constitution’s preamble so beautifully phrased it.

Government’s—and our—obligation to protect people and property is paramount. We are not giving up on that vision. Not now, not ever.

special feature

The Supreme Court will hear PLF property rights case

Joseph G. Lehman

Joshua Thompson

director of legal talent

MIKE FAHNER HAS farming in his blood. He was born to a potato farming family in Northern California, and in the late 1990s he founded Cedar Point Nursery—a strawberry plant farm—in Butte Valley, California. Today, Cedar Point Nursery thrives as one of the country’s biggest strawberry nurseries. Mike’s farm grows the “mother” strawberry plants for fruit growers across the country. Cedar Point Nursery, along with a few other nurseries in Butte Valley, produces 85 percent of the nation’s strawberries.

Cedar Point’s entire business revolves around the fall harvest: a tight six-week window when 400 seasonal workers join the company’s 100 full-time employees in trim sheds to prepare the strawberry plants for shipment.

The harvest season is hectic under normal circumstances, with long days that start before sunrise. But in 2015, before the sun had even poked above the horizon, pandemonium erupted at Cedar Point.

A crowd of about two dozen strangers burst through the doors of the trim sheds where employees were hard at work. The intruders paraded through the building shouting into bullhorns, waving flags, and disrupting work. They were representatives from the United Farm Workers (UFW), and they were marching through Cedar Point in an effort to convince the workers they all were underpaid and mistreated, and needed to strike and join the union.

“None of us had ever experienced anything like that. We’ve never seen a UFW flag,” said Mike. “We had absolutely no forewarning. This was an attack of monumental proportions.”

The union representatives managed to frighten a few people into leaving work that day. But once the commotion died down, the near-full staff resumed their work. Many shook their heads in disbelief that anyone would challenge the fair and competitive wages, safe and clean workplace, and respectful treatment they enjoyed at Cedar Point. And everyone—including Mike—was shocked that anyone would storm private property to ambush unsuspecting workers.

Mike prides himself on paying his workers above-market wages with generous benefits, so he wasn’t concerned about a possible strike, but he was concerned about the disruption that another union demonstration would cause for Cedar Point’s tight production schedule. Unfortunately, after consulting with an attorney, he discovered union officials could return to Cedar Point again and again. Worse, under California law, he would have to let them in.

The California Agricultural Labor Relations Board created its so-called Union Access Regulation in 1975 so unions could recruit new members on their employers’ turf. Unique to California and its agriculture industry, the regulation requires the state’s agricultural employers to allow union officials onto their property up to three hours a day, 120 days a year.

Forty-five years ago, the access regulation was adopted when reaching farm workers was a much tougher task. Cell phones and the internet didn’t exist. Radio airwaves were fewer and far between. And unlike auto workers or teachers, seasonal farm workers back then often lived on their employers’ land during the busy times.

None of those circumstances apply today. Cedar Point’s seasonal workers, for instance, are housed at nearby hotels, have cell phones, use social media, and are wired into means of communication far outside of the nursery’s private property lines. There are also hundreds of Spanish-speaking radio stations and other media outlets that the union can use to reach and recruit workers. Nevertheless, the Board insists its regulation is still necessary to reach these employees.

Mike wasn’t about to let his life’s work—and that of his employees—crumble under the weight of an archaic law. He decided to fight back.

“We had to defend ourselves. Where in this world can someone invade your house or your place of business with a bullhorn, disrupt everything you’re doing, walk out, and not face any repercussions?” Mike asked. “How is that not considered illegal, or an infringement on your private property rights?”

Fortunately, the union’s trespassing is indeed unlawful and unconstitutional. Unions have no special right to invade private property and disrupt commercial operations. And the U.S. Constitution protects property owners’ fundamental right to exclude people we don’t want on our property. Government can’t make a regulation violating that right even if it limits the hours.

The trespass regulation did survive a challenge at the state Supreme Court in 1976, but in 2016, Cedar Point and Fresno-based Fowler Packing Company filed a federal lawsuit to overturn the unconstitutional union trespass law. PLF is representing the farms free of charge.

The case unfortunately lost in district court and at the Ninth Circuit Court of Appeals. And although disappointing, eight judges dissented—as many judges as can possibly dissent in any circuit court, underscoring the need for Supreme Court review.

In fact, Ninth Circuit Judge Sandra S. Ikuta further planted the seed for a High Court challenge, noting in her dissent that, “[The Ninth Circuit] should have taken this case en banc so that the Supreme Court will not have to correct us again.”

Buoyed by the strong appellate court dissent and growing amicus support from liberty-minded allies, PLF filed a petition for certiorari with the Supreme Court on behalf of the two businesses, asking the High Court to invalidate California’s unlawful regulation and affirm that government can’t take an easement for unions to invade private property and disrupt commercial operations without paying compensation for it.

The Supreme Court granted the petition on Friday, November 13, and I look forward to oral argument, which will likely take place in late February.

This case could have significant consequences across the United States, because if the government knew that it could take easements as long as the takings weren’t 24 hours a day, seven days a week, 365 days per year, government could just say, “Okay we’ll take private property for specific valuable times and leave the rest of the hours to you.” We look forward to making the case for our clients and for all property owners that government can’t justify any form of property taking without compensation by carving out government-approved time increments.

A win would mark PLF’s 13th victory in 15 cases litigated before the high court—reaffirming PLF as the nation’s preeminent advocate for property rights and a true testament to PLF’s relentless pursuit of freedom.

Evaluating The 1619 Project: A conversation with Phil Magness

IN RECENT YEARS, Americans are paying renewed attention and having new discussions on race, racism, and discrimination. Some of those discussions have been positive and constructive, but some have been divisive and political. One of the more controversial academic and historical aspects of that discussion has come from a project by The New York Times called The 1619 Project. In short, The 1619 Project is a series of articles and essays exploring America through the lens of slavery. The project has been controversial for many reasons, and it has contributed to many of the political angles of the ongoing conversations about racism and slavery.

Phillip W. Magness is a senior research fellow at the American Institute for Economic Research. His work encompasses the economic history of the United States, with a focus on the history of slavery and taxation in the 19th century. Magness recently wrote a book titled The 1619 Project, A Critique, exploring the arguments and positions that The 1619 Project takes, and pointing out what it gets right and what it gets (sometimes very) wrong.

PLF interviewed Magness to discuss The 1619 Project, and learn more constructive ways of viewing—and talking about—slavery and racism in America.

Let’s start at the beginning. What was The 1619 Project and what was it trying to do?

The 1619 Project was an issue of The New York Times Magazine that came out in August of 2019. It was packaged as a part-historical, part-editorial take on slavery’s role and legacy throughout the United States’ history. As the title suggests, the year 1619 is when the first slave ship arrived off the coast of Virginia. The project’s contributors are trying to reorient our understanding of American history around that event as something of a starting point, and then tracing the legacy of slavery all the way through the present day.

Broadening the perspective of slavery’s legacy is a worthwhile avenue of historical research. The standard U.S. history textbook looks at slavery just before the Civil War, and The 1619 Project’s narrative covers 400 years.

The fact that slavery persisted on this continent for basically a century and a half before American independence ever occurred is something that’s not readily discussed in most of the history books.

But where The 1619 project goes wrong is The New York Times used this topic as a pretext to launch into some very ideological work more connected to the 21st-century progressive political agenda than actual historical investigations.

The lead essay opens with the claim that “Our democracy’s founding ideals were false when they were written.” What’s your evaluation of this?

The 1619 Project opens with a bold declaration, that they’re trying to reorient or reframe American history around the year 1619 instead of 1776. The project’s director, Nikole Hannah-Jones, very famously now, put on her Twitter page an image of the year 1776 crossed out and replaced by 1619. And in several public interviews around the time, she said that 1619 was the true founding of the United States.

The project tries to tie our nation’s origin story more explicitly to the concept of slavery, which taints that origin. The idea here is that America is basically conceived in sin, and this horrific institution should be seen as the dominant theme of American history. But I believe The 1619 Project goes too far in making that link, because if you take the position that the country is born out of slavery, it displaces those positive ideals that we associate more readily with 1776, like the notion that all men are created equal, the success of constitutional order, and an orientation toward the preservation and expansion of liberty.

Why do you think a narrative of the country’s founding based on individual liberty and the Declaration of Independence is a better one than one based on slavery and 1619?

The notion of an American founding based on liberty is always aspirational. We very clearly know that slavery was a significant and substantial problem in our constitutional order. As soon as independence was declared, as soon as the ink is dry on the Declaration of Independence, there are people in that era who immediately recognize that slavery is inconsistent with the course that this new country was charting. But you can’t get to a point of abolishing slavery if you don’t have a philosophical grounding that allows you to make that case.

And here, The 1619 Project is trying to displace that philosophical grounding by claiming the only true constitutional order that emerged after the American Revolution was the pro-slavery one. But that sounds an awful lot like some of the legal arguments that were put forth in the infamous Dred Scott Supreme Court decision in 1857, which asserted that the American founding and the constitutional order that emerged from it were pro-slavery.

Yet even when it was decided, a majority of the country saw this as a noxious legal theory. It was inconsistent with the philosophical moorings of the founding, which was rooted in a liberty-minded egalitarianism and a rights-minded understanding of constitutional law.

My own take would be to view American history as an ongoing conflict of competing visions. Because there are obviously pro-slavery figures that emerged from the Revolutionary Era. But at the same time, there were also many anti-slavery views that emerged from the same period. And for the 80 years or so from the founding to the Civil War, there’s a continuous fight between those two sides over who gets to claim the mantle of American constitutionalism.

A proper framing of America’s founding needs to recognize that the Anti-Slavery Movement is very much a part of the original constitutional order. You can trace it from the Founding Era all the way up until the Civil War and—as we know now—the anti-slavery perspective ultimately won the day in the 13th, 14th, and 15th Amendments.

A lot of the 1619 writers talk about how the Founders owned slaves themselves, so in their view, the nice-sounding words the Founders wrote in the Declaration of Independence are worthless because of their hypocrisy. What would your response be to that argument?

Well, it ignores the complexity of the figures of that generation. George Washington, James Madison, and Thomas Jefferson were all slave owners; even some of the Founders who were more on the anti-slavery side, such as Alexander Hamilton, had their fingers in the slave trade. But even though many of the Founders were slave owners, their writings and arguments in speeches show their continuous moral struggle over the institution. Thomas Jefferson very famously recognizes how terrible the institution of slavery is in one of his letters, where he says he trembles when he thinks about what the institution of slavery is going to do to the country.

They’re all grappling with the problem of slavery because they know it cannot last. They know it cannot become a permanent institution of American constitutional order, and they are constantly asking themselves the question, “How do we wean ourselves off this institution? How do we set ourselves on the path to where the future United States is not dependent on it?”

Another aspect of The 1619 Project is their critique of capitalism, where they try to place the origins of contemporary capitalism in the system of plantation slavery. How do they make that leap?

I think the 1619 writers make a fallacy of assigning political outcomes, including political harms, to economic events. They try to associate very real political legacies of slavery and institutionalized discrimination with capitalism. But if you probe beneath the surface of many 1619 articles, you start to find a through line of ideological anti-capitalism that’s primarily motivated by current-day politics.

What’s left out, however, is the entire intellectual history of free-market capitalism. In fact, free-market capitalists throughout the 18th and 19th century, including Adam Smith himself, were incredibly outspoken abolitionists. Smith aggressively attacked slavery and made a moral case against slavery in several of his books and lectures. He made a political case against slavery that basically treated slave owners as an interest group that corrupted the legislative process to prop themselves up at the expense of the rest of society and at the expense of slaves themselves.

Abolitionists themselves tended to be aggressive free-market advocates compared to their pro-slavery foils in the South. Most slavery advocates considered themselves anti-capitalists.

So The 1619 Project completely inverted the intellectual history of where capitalism comes from.

For example, on the eve of the Civil War, there’s a figure by the name of George Fitzhugh who’s considered probably the most prominent pro-slavery theorist in the United States. Fitzhugh opens his book, not by attacking the abolitionists outright, but by attacking the doctrine of free trade and laissez-faire economics. Fitzhugh declares that free-market capitalism is “at war with slavery” by introducing a free-labor system and styles of production that he sees as unsuited to the agrarian slave economy.

So American capitalism isn’t infused with the brutality of slavery. American capitalism, or at least the free-market variant that we see coming out of the tradition of Adam Smith, was in fact infused with abolition and at war with slavery. American capitalism was a major reason that abolitionism became a viable political and economic force

One big thing that has come out of 2020 is the idea that we should see people much more through the lens of race. Do you have any comment on that related to your work on The 1619 Project?

Race is unavoidably wrapped up in the historical issues raised by The 1619 Project. And with reason. Racialized slavery is a dominant issue of our nation’s historical narrative.

Anti-racism as a moral principle enjoys widespread resonance, and for good reason. I see that as a positive development in the American political ethos that may not have been true even as recently as 40 or 50 years ago.

On the other hand, I think there are ideologically loaded versions of anti-racism that move away from the basic principle of equality, the basic principle of treating other people with dignity and respect, with adhering to a legal system that respects and honors their rights, and moving more into an anti-racism defined as an ideological proposition aligned with progressive and far-left causes.

Many of the ideas coming from 1619 writers are not just principles of equality and equal treatment. They include far-flung attacks on capitalism, saying capitalism is inherently a racist institution, and to be anti-racist, one must also be anti-capitalist.

So when we address anti-racism as a topic, we need to be careful to distinguish between a moral commitment to equality, and the political version of anti-racism that has become tied to unrelated topics that resonate with the far left.

Many of the anti-racist writers try to reframe how we talk about race and around the idea of “You are your group. You are your race.” What are some better ways that we should be looking at race today?

Broadly speaking, the political discourse around race, which comes from a very far-left perspective, has an unfortunate effect of crowding out other forms of anti-discriminatory thinking, including the individualist form. The notion of individual rights and the dignity of the human person. The notion that people should not face persecution or discrimination based on their skin color, based on their religion, based on their ethnicity. These are all stories rooted in the rights and liberties of an individual.

There is an aspirational legal theory dating back to the American founding that is premised upon upholding the dignity of the individual. We’ve often fallen far short of that promise, but at least as an aspiration, it was stressed in the writings and speeches of Frederick Douglass. This is something that has persisted across the abolitionist literature before the Civil War, and it’s something that persisted into the 20th century with parts of the Civil Rights Movement, stressing the dignity of the individual as the basis for combating institutionalized racism and institutionalized discrimination.

Unfortunately, when you try and discuss those topics today, race is seen through the progressive left political lens, which squeezes out and deflects attention away from that longer tradition of individual liberty. In other words, you’re basically jettisoning a significant portion of the successes of the Abolitionist Movement and the successes of the Civil Rights Movement when you jettison the individualist perspective from the discussion.

So a reorientation of that discussion back to the precepts of rights, back to the precepts of personal liberties, and back to the precepts of the individual dignity of the human person is a way to move forward from this conversation.

We should be discussing and learning more about slavery’s history in America. But a critical part of that discussion also means reviving the old classical liberal, free-market tradition that imbued itself into the Abolitionist Movement. The more we can revive and refocus our historical attention upon the importance of individualism, the more we can actually embrace the positive legacy of successfully abolishing a genuine evil from the world.

A Tale of Two Cities

Joseph G. Lehman

Jaclyn Boudreau

creative director

OUR CLIENTS NEVER asked the elites to come save them, but the elites came anyway. From coast to coast, minorities’ unwelcome champions have been working hard to bake racial discrimination back into the law, ironically, in the name of equality.

Last year, Pacific Legal Foundation produced a documentary, Quota, about our case in Hartford, Connecticut, where thousands of Black and Hispanic children are being denied admission to their neighborhoods’ world-class magnet schools, even though the schools are under-capacity. Why? Because in an effort to ensure diversity in the schools, the state is forcing the schools to reserve 25 percent of their seats for white and Asian students. This means that if not enough white and/or Asian students attend a given school and more than 75 percent of that school’s student body is Black and/or Hispanic, then the school can be fined or even shut down entirely.

Connecticut would rather shut down world-class schools giving Black and Hispanic students excellent educations than let those students learn if there aren’t enough white students around them.

More recently, PLF produced another documentary, Dream Factories, which is an almost-mirror-image of the Quota story. New York City’s Specialized High Schools are among the best in the world. They are free for any New York student, and admission is open to anyone who passes a rigorous admissions test. The schools have produced 14 Nobel Prize winners—more than many countries.

New York’s Specialized High Schools are extraordinary on their own merit, but they are even more incredible when compared to the city’s regular public schools. In recent years, New York’s public school system has been plagued with grade inflation scandals, cheating, low attendance, and low proficiency on statewide tests. But instead of addressing the city’s failing general school system, Mayor Bill DeBlasio and Education Chancellor Richard Carranza are distracting attention from those hard-to-solve issues to focus on the fact that the students at the Specialized High Schools are primarily Asian.

DeBlasio and Carranza have called the admission test for the Specialized High Schools—which doesn’t record the student’s race at all—racist, implying that the number of Asian students prevents Black and Hispanic students from getting in. They’ve changed some of the admissions policies for the Specialized High Schools in ways that are specifically designed to limit Asian students, and they want to do away with the race-blind test altogether and take students’ race into account for admissions.

In Quota, our clients are fighting activists who are risking the futures of thousands of children for a “more diverse” Hartford. In Dream Factories, our clients are fighting self-serving politicians who are weaponizing identity politics to draw attention away from their failures.

These two stories are not identical, but they share some striking similarities. In both cities, activists and politicians have appointed themselves judges of who is worthy of opportunity and who isn’t. In both states, these racial alchemists are saying they’re improving minorities’ lives. Yet, in both states, they are making them worse.

The heroes of both stories are everyday Americans who want to make their own choices—the right choices—for their families. The villains are bureaucrats who cloak their meddling in high-minded, self-righteous goals. The conflict is between competing visions of human beings. Should people be treated as members of groups based on immutable characteristics, or should people be treated as individuals with their own minds and their own judgment?

We stand decidedly with our clients on this conflict: on the side of freedom.


I liken it to Jim Crow 2.0, I call it Jamie Crow. Too many children are being denied a quality education for a quota.

– Craig Stallings, Father and Former Harford School Board Chairman

We shouldn’t be focusing on the child’s color to determine who gains access to the 26 letters of the alphabet.”

– Gwen Samuel, Mother and President, Connecticut Parents Union

There was a quote with something like ‘We want quality, integrated schools.’ And my thought bubble was, ‘How about we want quality schools?’”

“Integrated schools are too often the pet projects of elite people.”

– Sharif El-Mekki, Charter School President

Dream Factories

These people are working their a**** off. Why would we try to hold back people whose performance reflects what’s possible to be achieved in society?”

– Glenn Loury, Professor, Brown University

My grandparents worked in sweatshops so that I could have a better future here. We should have an equal amount of chance and opportunity to go to a Specialized High School.”

– New York Public School Student

Man, if you don’t realize that in the 21st century, affirmative action is deeply problematic for Black people—is injurious to the dignity of Black people—you’re not paying attention. I’m an economist, I would like to win the Nobel Prize in Economics one day…but it would be worth nothing if the committee that awards Nobel Prizes was picketed by Black Lives Matter for six months before they awarded it to me, demanding that a Black American be given the Nobel Prize in Economics. Keep your hands off of my honor!

The courts are a haven from political fights

Joseph G. Lehman

Anastasia Boden

Senior Attorney

ON JUNE 12, 1967, the U.S. Supreme Court issued its landmark decision in the case of Loving v. Virginia, which ruled unanimously that state laws prohibiting interracial marriage violated the promise of equal protection before the law. That case became a famous touchstone of civil rights law, and was even the subject of a major Hollywood motion picture in 2016.

But a look at the contemporaneous media coverage of the case is telling, because it’s like entering a time machine to an era before every matter of public concern was hyper-politicized.

An article from The New York Times covering the Loving decision was brief and to the point. It recounts the facts of the case, quotes the decision written by then-Chief Justice Earl Warren, and provides brief explication of the case’s potential legal significance.

Here’s what the 1967 Times article doesn’t do: It doesn’t quote partisan activists on either side of the case who might have been invested in the outcome. It doesn’t note the party of the president who appointed Warren to the Court or characterize the Chief Justice’s ideological leanings. It doesn’t steer the reader’s response with loaded or emotional language. It’s little more than a dry, factual recounting of the Court’s decision.

As a constitutional lawyer, I’ll admit to feeling a little wistful about that bygone age when the courts could make even a historic decision and the media could report the event with simple, forthright clarity and equanimity. It’s a reminder that there was a time, in fairly recent memory, when the courts were seen as a reprieve from the hurly-burly of politics and partisanship.

Compare that sober response to today’s hysterically polarized climate, in which politics has seemingly infected everything. Where do we go for a reprieve from partisanship? Don’t let them fool you: it’s still the courts.

Courts are where individuals turn when politics has steeped too far into our lives. The Constitution (and by extension, the justices who enforce it) take some aspects of our lives off of the political table so that we can live our lives free of the backdoor deals, lobbying, cajoling, compromising, and unholy alliances that come with partisan politics.

At least that’s one view, and it’s the view that properly understands the role of the judiciary. An unfortunate competing view is that courts are merely another political branch, who should—and in practice, do—make political decisions rather than ones rooted in the Constitution.

This view manifests itself in the way many people now talk about the Supreme Court confirmation process. In Justice Amy Coney Barrett’s October 2020 confirmation hearings, politicians outright asked the nominee what she thought about global warming, abortion, systemic racism, COVID-19, and the Affordable Care Act—as if her personal political views are relevant to her capacity to judge. News reports now routinely report that “Republicans” have a 6-3 majority on the Court”. Some advocate court packing as a legitimate and necessary means of “balancing” the bench.

This creates a sort of self-fulfilling prophecy. In a recent speech, Justice Samuel Alito noted that after a group of politicians threatened to “restructure” the Court if it ruled on a Second Amendment challenge to New York law, the Court dismissed the case. He said that while the Court had made its decision independently, the fact that the politicians had made such a statement caused people to assume the Court was acting according to politics rather than according to principle.

It’s a mistake to think of the Court as an extension of the political sphere. The role of the judiciary is to enforce constitutional guarantees rather than acceding to political whim. Courts are supposed to be a bastion of liberty when the democratic process fails us.

When the Court has taken up its proper role of enforcing liberty against unwarranted violations, it’s been instrumental in many (if not most) of the biggest civil rights victories in United States history. The Loving case is one example, but there are several others: there’s Tinker v. Des Moines, which ruled that a school could not ban students from wearing black armbands to protest the war in Vietnam; and Gideon v. Wainwright, which ensured that states provide counsel for those too poor to afford representation in criminal cases; and NAACP v. Button, which denied Alabama’s attempt to collect the names of members of the NAACP and upheld the group’s First Amendment rights.

Cases like these transcend politics; in fact, they reject the idea that politics should be able to govern many aspects of our lives.

That’s not to say the courts have been perfect at protecting our constitutional rights. But where courts have done their worst, it’s often been exactly because they’ve abandoned constitutional guarantees of liberty in favor of some other guiding principle.

Fortunately, even when the Court has gotten it wrong, the arc of Supreme Court history has bended toward justice. Plessy v. Ferguson, which ruled that “separate is equal,” was followed by the Court’s landmark decision in Brown v. Board of Education. And Bradwell v. Illinois, which denied that women had a constitutional right to practice law, was followed by cases like U.S. v. Virginia, which affirmed equality of the sexes before law.

In the same vein, Kelo v. City of New London, which drastically expanded the government’s ability to take people’s property through eminent domain, will also be overturned. Decisions like The Slaughterhouse Cases and Williamson v. Lee Optical, which relegate the right to earn a living to second-class status, will be rectified.

And that’s why we fight. Because we know that democracy is two wolves and a sheep voting on what’s for dinner, and we expect courts to be our refuge from those who would impose their political preferences rather than respect our constitutional rights. Courts ensure that the Constitution, and not majority rule, prevails. Courts put constitutional guarantees before politics.

We should embrace that more modest view of the courts’ role. Let’s resolve to step away from the heated, over-politicized focus on court decisions—in which every case is an existential threat—for a more measured response that focuses on the constitutional issues at stake. In the meanwhile, PLF will be fighting for liberty where it matters: in the last bastion for individual rights.

PLF celebrates the generosity of The Quarter Century Club

PACIFIC LEGAL FOUNDATION is honored to recognize those donors who have steadfastly fought for freedom by supporting PLF for 25 or more consecutive years. This extraordinary commitment to our mission of defending liberty and justice for all is as consistent as it is wonderful and deserves our deepest gratitude.

Thank You!

Mr. and Mrs. Thomas L. Alley
Mr. William J. Alser
Mr. and Mrs. Robert L. Altick, Jr.
Mr. and Mrs. Tony Alvarez
Mr. John M. Anholm
Mr. Richard J. Arabian
The Armstrong Foundation
Associated General Contractors of California
Bancroft-Clair Foundation
Mr. and Mrs. Franklin L. Barnes, Jr.
Mr. Robert A. Bartshe
Mr. John Batz
Mr. J. Stephen Barratt
Mr. and Mrs. Bruce V. Baumann
Mr. Thomas J. Biagini
Mr. and Mrs. Fred Bialek
Col. Joseph E. Boling, USA (Ret.)
Mr. and Mrs. Robert A. Booth
Mr. John W. Borchard, Jr.
Mr. James H. Bowersox
Mrs. Helen B. Breck
Robert & Alice Bridges Foundation
Mr. C. Howard Brown
Dr. and Mrs. Richard E. Brown
Dr. Lawrence W. Browne
Mr. and Mrs. Daniel A. Bryan
The Henry W. Bull Foundation
Mrs. Nancy Burling
Mr. and Mrs. Francis G. Burlingham
Mr. and Mrs. Ronald E. Busch
Mr. Karl D. Buus
California Association of REALTORS® Issues Mobilization PAC (IMPAC)
California Orchard Company
Mr. James H. Carson
Mrs. Joe Changala
Mr. Michael F. Chase
Mr. and Mrs. Bruce J. Chisholm
Church of Our Lord & Savior
Mr. and Mrs. Andrew T. Clifton
Mr. and Mrs. James L. Cloud
Mr. and Mrs. Larry D. Collier
Mr. and Mrs. Joe Crail
The Cramblit Family Foundation
Malcolm Cravens Foundation
Mr. and Mrs. Gene A. Dana
Mr. and Mrs. Charles E. Daniels
The Hugh & Hazel Darling Foundation
Davidon Homes
Mr. and Mrs. Donovan C. Davis
Mr. Willett C. Deady
Mr. and Mrs. Paul E. Dembry
Mr. Charles C. Devalon, Jr.
Mr. Robert Dick
Mr. and Mrs. Stephen B. Dudley
Mrs. V. Ruth Dunn
Dr. and Mrs. Robert I. Finkel
Mr. Steve G. Flett
Mr. and Mrs. Bill Floyd
Mr. Richard L. Fowler, Jr.
Mr. and Mrs. William J. Frodsham
Mr. Pete Ganahl
Mr. Bradley Gaylord, Jr.
Ms. Juliet Gede

The N. B. and Jacqueline Giustina Foundation
Mr. Paul S. Glavinovich
Mr. L. A. Guske
Mr. and Mrs. Simon T. Halff
Mr. and Mrs. William R. Hamilton
Mr. William J. Hammerback
Mr. Craig W. Hammill
Mr. Roy A. Hannah
Mr. Herbert L. Harger
Mr. and Mrs. David E. Hart
Mr. James A. Hart
Mr. and Mrs. Samuel C. Hathorn, Jr.
Mr. Rufus L. Hayden
Mr. Robert E. Henderson
Mr. Randall D. Hough
Mr. William L. Hoyt, Jr.
Mr. and Mrs. Roger W. Hyde
The Charles and Ann Johnson Family Foundation
Mr. Lawrence F. Johnston
Mr. Edwin R. Jones, PhD
Jones Farms, Inc.
Jurow Financial
Mr. Robert Otto Keck
Mr. and Mrs. George R. Keene
Mr. Walter N. Kimball
Mr. and Mrs. John D. King
Mr. Lester and Mrs. Dorothy Kranhold
Mr. Jack R. Kuzia
Mr. and Mrs. Norman H. Lehrer
Mr. David A. Levinson
Mr. Donald C. Linden
Mr. Fred J. Lischka
Dr. Edwin A. Locke
Mr. William P. Lockett
Mrs. Carole Ludekens
Ms. Jacqueline K. Ludlum
Mr. Clifford L. Luengo
Mr. Thomas Lyons
Mr. Gary B. Mac Lean
Mr. David W. Martin
Mr. David L. Mayo
Mr. John R. McIntosh
Mr. and Mrs. Forrest S. McKinley
Mr. and Mrs. James McNab III
Mr. and Mrs. Peter A. Meredith
Mr. Frederick J. Miller
Mr. Robin R. Moerman
Dorothy D. and Joseph A. Moller Foundation
Montfort and Co. Realtors
Mr. William W. Montgomery III
Mr. and Mrs. David C. Morse
Mr. Vince J. Mullally
The Negaunee Foundation
Mrs. Jeannette E. Nielsen
Mr. Karl F. Nygren
Mr. Marshall D. O’Neill
Mr. Samuel H. Ordway
Mr. and Mrs. Michel J. Orradre
Dr. D. Bruce Orsborn
Mrs. Carl L. Ott
Benjamin D. Parmeter, MD
C. A. Peckhams’ Family Revocable Trust
Mr. Robert A. Peppermuller

Mr. Sidney R. Petersen
Mr. Jack Pew, Jr.
Dr. and Mrs. Edward M. Pflueger
Mr. Eugene D. Pons
Mr. Albert H. Powers
The Project, Inc.
Mr. and Mrs. Randall Putnam
Mr. Carter Quinby
Mr. Raymond W. Radke
Mr. Richard D. Rainis
Mr. William J. Rankin, Jr.
Redding Oil Company
Mrs. La Donna D. Rhodes
Ms. Jeanette S. Ritchie
Ms. Kathleen M. Robe
The Rock Foundation
Mr. and Mrs. Howard C. Rodean
Mr. and Mrs. Howard E. Rollins
Mr. and Mrs. Kenneth L. Roos
Mr. Leslie Rose
Mr. and Mrs. Terrence J. Rose
Mr. John L. Rutledge
Ryan Family Charitable Foundation
Salinas Land Company
Mr. Robert A. Scheel
Mr. Carey E. Schulten
Mr. and Mrs. Thomas A. Schupp
Mr. Rolland R. Seegers
Mr. Daniel H. Sheingold
Mr. Robert F. Shryock
Mr. and Mrs. Grant B. Smith
Lon V. Smith Foundation
Mr. and Mrs. Richard H. Solomon
Harvey L. and Maud C. Sorensen Foundation
Mr. and Mrs. M. Frank St. Clair
Mr. and Mrs. George H. Stephens
Mr. Henry T. Swigert
Mr. Jeremy Taylor
Mr. Michael J. Telesco, Jr.
Mr. and Mrs. Brian D. Thiessen
Mr. Gene Thompson
Tooley Investment Company
Mr. Robert W. Townsend
Triple B Ranch, Inc.
Mr. Ronald D. Trust
Tulare Lake Basin Water Storage District
Mrs. Elizabeth Tulloch
Pete & Paula Uccelli Foundation
The Usibelli Foundation
The Honorable and Mrs. Donald Van Luven
Mr. Richard H. Vaughan
Mr. George M. Veeh
Mr. George I. Walton, Jr.
Watson Land Company
Mrs. Joan F. Weller
Western Manufactured Housing Communities Association
Dr. Bruce Wheeler, Jr.
Mr. G. Ransom White
Mr. B. F. Wohlford
Dr. Richard D. Wollmer
Mr. and Mrs. M. L. Woodson
Mr. John Philip Woodward
Anonymous (18)

**This list recognizes donors who have given 25 or more consecutive years to PLF, with their 25th year occurring on or before October 15, 2020.