Defending individual rights

There's an old tale about a lonely Midwestern farmer who sent away for a mail-order bride.

He met her at the train station with a one-mule buckboard. The two terribly shy people exchanged pleasantries and headed off for his farm in silence.

A little way down the road the mule just stopped. The farmer muttered under his breath, "That's once." She said not a word.

Soon the mule started up again and they continued toward the farm.

Then the mule stopped again. The farmer said, "That's twice."

A little further down the road the mule stopped for a third time. The farmer climbed down, reached under the seat, pulled out a two-by-four and proceeded to bash the mule across the bridge of its nose, causing it to drop dazed to its knees.

From the buckboard the new bride exclaimed, "What the heck do you think you are doing? You'll kill the poor beast!"

The farmer looked up and said, "That's once."

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For two decades Nevada Policy Research Institute has been shining the white light of public scrutiny on state and local government entities encroaching on civil liberties, overspending tax money, lacking transparency and generally overreaching the enumerated powers spelled out in our federal and state constitutions.

Enough is enough, NPRI has just pulled out a litigation two-by-four.

Earlier this month the nonprofit, free-market institute announced the creation of the Center for Justice and Constitutional Litigation, which is tasked with defending the fundamental rights of individuals.

The man chosen to launch the effort brings a unique perspective and philosophy to the job. Attorney Joseph Becker has not only worked with a similar public-interest law firm in Colorado, Mountain States Legal Foundation, and for libertarian-leaning Texas Rep. Ron Paul, he studied at UNLV under the famous Austrian School economists Murray Rothbard and Hans-Hermann Hoppe.

Becker espouses a view that personal and economic liberty are inseparable.

Andy Matthews, vice president for communications at NPRI, describes the mission of the institute and its new legal arm as basically the preservation of liberty. "We've used a lot of tools and a lot of methods to carry out that mission. ..." he says. "What we've become more and more aware of recently is that a lot of times the issues, the areas that require the most attention run deeper than the specifics of individual policies. A lot of times what we are talking about is not just a policy, as important as those are, but fundamental individual rights as set forth in the constitutions of Nevada and the United States. I think what we've seen for a long time now, especially in recent years, is that government has been eroding those fundamental rights. So the center has basically been established with the aim of protecting and upholding those rights."

Becker himself sums up the CJCL's mission in a nutshell: The Bill of Rights. He jokes that the only one of the 10 original amendments to the Constitution to remain inviolate since 1791 is the Third, which prohibits quartering of troops in private homes without the owner's permission.

NPRI's website lists potential areas for litigation as: Freedom of speech, assembly and religion, as well as gun ownership, property rights, privacy, limited government and separation of powers. "The Ninth and Tenth amendments are very important to us -- separation of powers, leaving to the states what's the order of the states and even separation of power, making sure the legislative, executive and judicial branch maintain their separate and proper roles," Becker explains.

He plans to assemble a team of Nevada litigators to handle the legal work, perhaps hiring some and inducing others to satisfy the state's pro bono requirements by working CJCL cases.

"Of course," the attorney inserts, "we don't charge clients."

CJCL will not become involved in disputes between private parties and will not take a criminal case unless a fundamental right or liberty is being denied by law.

Pressed for types of litigation the new center might entertain, Becker mentions two.

While with Mountain States Legal Foundation, Becker twice visited Las Vegas to consult with his former economics professor Hoppe, who had run afoul of the political correctness machine at UNLV for some comments made during a lecture in 2004.

While discussing time preference as it relates to economics, Hoppe gave an example that homosexuals, as a group, because they typically do not have children, tend to be more present-oriented. He also suggested that this helps explain why the theories of economist John Maynard Keynes, a homosexual, were short-run economic policy recommendations and why, when asked about the long-run, he replied, "In the long run we are all dead."

A gay student filed a formal complaint.

Becker says Mountain States considered representing Hoppe but decided the American Civil Liberties Union was a better fit. The professor's free speech rights eventually were vindicated.

One case Becker handled for Mountain States all the way to 9th U.S. Circuit Court of Appeals involved the property rights of a Northern Arizona fast-food restaurant owner whose business was surrounded by the Navajo Reservation.

"For 25 years he had 95 percent Navajos working for him, but at some point he got some bad ones, who were harassing their fellow employees sexually and the customers even in Navajo," Becker recalls. "To make sure he didn't run afoul of some EEOC (Equal Employment Opportunity Commission rule) for allowing sexual harassment in the workplace ... he instituted, when you are on the clock, you speak English, so he could monitor what's being said. So instead of getting sued for maintaining a hostile workplace by the EEOC, he got sued for national origin discrimination, that nation being the Navajo Nation."

They lost the case on a technicality at the 9th Circuit and did not appeal, but the owner eventually got the policy he wanted and the EEOC has left him alone.

"To me that's a free speech case. Why can't I conduct my business in any language I want, but then this comes back to that commercial speech versus noncommercial speech," says Becker.

While in law school, Becker wrote an award-winning law review article on this topic with the unwieldy title of "Procrustean Jurisprudence: An Austrian School Economic Critique of the Separation and Regulation of Liberties in the Twentieth Century United States."

(Procrustes was a mythological Greek robber who would lay out his victims on an iron bed and make them fit by either stretching or cutting off their legs.)

"I argued in that article quasi-scientifically, using the Austrian School of Economics, that you can't separate fundamental personal liberties, because all fundamental liberties require some property to enjoy," Becker recalls. "Freedom of press is great but without the right to own ink and printer, or at least a computer these days, (it is) meaningless. If you don't have a place at least on which to stand and speak freely, so even free speech requires the right to some property on which to exist, right? The court however came up with this artificial separation screen. One of the things in this context is commercial speech versus noncommercial speech and commercial speech gets less protection than other forms of speech as you probably know. What do you do when you print on one side of a paper the Declaration of Independence and on the other one side of the piece of paper 'Eat at Joe's'? It is just hopeless artificial separation scheme."

At the conclusion of the review, he quotes another former professor, Rothbard:

"[H]uman rights, when not put in terms of property rights, turn out to be vague and contradictory, causing liberals to weaken those rights on behalf of 'public policy' or the 'public good.'"

Learn more about the CJCL at http://justice.npri.org/.

Thomas Mitchell is senior opinion editor of the Review-Journal. He may be contacted at (702) 383-061 or via e-mail at tmitchell@ reviewjournal.com.