Freedom-Fighters Forum

The Constitutional Broadside 

V1 N7 A PUBLICATION OF THE TWENTY FIRST CENTURY COUNCIL 
Hosea 4:6 My people are destroyed for lack of knowledge. 

PROBLEM 

QUESTION: IS THE OCCUPATIONAL HEALTH AND SAFETY ACT CONSTITUTIONAL?

Searching the Congressional Record for opposition to the Occupational Health and Safety act is a fruitless task. The fact that there was practically no written opposition recorded in the Congressional record is proof that our presently constituted Congress is overwhelmingly socialistic in their approach to ownership and control of private property.

In past issues of the Broadside we have presented the Constitutional Answer first and followed with the Unconstitutional Answer. We wish to reverse that process in this issue to show first the flagrant violations of Constitutional rights which this law has set in motion.

To do this we will use an article by former Secretary of the Interior, Steward Udall. The article appeared in Newsday, Aug. 29, 1970 and is entitled The Factories and Shops are Environments, Too.

UNCONSTITUTIONAL ANSWER

“In a bold departure from all previous labor legislation, the Daniels bill would:

“Impose on industry the “general duty” of furnishing workers a place of employment which is safe and healthful.

“Empower the Secretary of Labor to set nationwide health and safety standards for work environments.

“Call for unannounced federal inspections of working places and prompt disclosure of the findings to workers.

“Authorize the Secretary of Labor to impose fines and seek court action against employers who violate the “general duty” or specific standards.

“Permit the Secretary of Labor to close down all or part of any plant where workers are in “imminent danger” of injury or disease.

“Direct the secretary of health, education and welfare (sic) to publish a list of all known or potentially toxic substances including those whose analysis is specifically requested by the workers.

“Allow employees to refuse work, without loss of pay, in areas where toxic substances are formed at dangerous concentrations.” (Congressional Record Sept. 9., 1970 pp 30915, 30916)

CONSTITUTIONAL ANSWER

Since it was impossible to find anyone already elected to office brave enough to oppose this unconstitutional law in the Congressional Record we have taken the liberty to present the opposition to this “law” from the pen of Joe H. Ferguson, Candidate for Congressman for the First Congressional District of Utah.

“The bureaucrats not only do not respect our desire to obey the law, they take advantage of it. They deliberately pass illegal “laws”, hoping that we will abide by them instead of challenging them in court…”

1. POINTS WHERE THIS “LAW” CAN BE CHALLENGED IN COURT

a. “The entire Occupational Health and Safety Act are unconstitutional. Article ten of the constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the States, are reserved to the States respectively, or to the people. Since neither the states nor the people ever gave this power to the federal government, the Congress had no authority to pass it or provide for its financing or administration.

b. “OHSA “inspectors” have no constitutional authority to inspect your business. Article Four of the constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon particularly describing the place to be searched, and the persons or things to be seized.” If an OHSA “inspector” wants to inspect your business, he should have a court order and have a competent officer of the law present it.

c. “Imposition of fines under OHSA violates several articles of the Constitution. Article Five states, “No person shal be..deprived of life, liberty, or property, without due process of law..”Article Six states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial..” Article Seven states, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved…”Article Eight states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

Through OHSA, dictators assume the position of judges; they possess no legal judicial authority. Their powers are not derived from constitutional sources, but are usurped. They do not have authority to judge or impose fines upon you. Under the United States Constitution no fines can be imposed without court action.

d. Under the Constitution you have no need to give information to OHSA “inspectors.” Article Five of the Constitution reads, “No person..shall be compelled in any criminal case to be a witness against himself…” It has been proven in court that you do not have to furnish evidence that might tend to incriminate you. Information which you give to “inspectors” might be used against you at any time.” (The UTAH INDEPENDENT, May 5, 1772)

2. GOVERNMENT INVADES RIGHT TO OWN & CONTROL PROPERTY

The right of the individual citizen or company to own and control property is being invaded by government on every side. The Occupational Health and Safety Act is one of the most flagrant violations of this right which is inherent in God’s commandment, “Thou shalt not steal anything that is they neighbor’s” Exodus 20:15, 17. This commandment established the right to ownership. Ownership implies control, for without control of property, ownership is a myth.

PRIVATE OWNERSHIP VERSUS PUBLIC DOMAIN

Mr. Oscar W. Cooley, Associate Professor of Economics at Ohio Northern University, takes up the case for private ownership of property in relation to pollution in an article from the June 1972 Freeman, entitled Pollution and Property.

“In all the welter of worry about “the environment,” seldom is property and its relevance to pollution mentioned.

“To own property is to have a measure of control over a definable portion of one’s environment. If one has property, he has a degree of power to prevent his environment from being despoiled. Indeed, the purpose of property, it seems, is to enable man, the owner, to bring environment under control and make it yield up a maximum of satisfactions.

1. OWNERS TAKE BETTER CARE OF PROPERTY THAN NON-OWNERS

“It has often been noted that people pollute least—that is, take best care of-that part of the environment which they themselves own. The householder is more solicitous of the home he owns than the renter is of the house in which he is but a temporary tenant. A family which, on a picnic, might leave litter in a public park and beer cans by the roadside will not dump waste on their own front lawn.

2. PROPERTY PUT TO ITS BEST USE BY OWNER IS NOT POLLUTED

“Is it possible, one might ask, for an owner to “pollute” his own property? To the extent that it is his to utilize as he sees fit, whatever he does with it will be, in his view, its best use. And when a resource is being put to its best use, it can hardly be said to be “polluted.”

3. POLLUTION OCCURS WHEN NEIGHBOR’S PROPERTY VALUES LOWERED

“If I deliberately pipe sewage into a pond on my own land, presumable I consider using the pond as a cesspool to be its optimum use. Hence, there is no abuse, no pollution. If however, either purposely or inadvertently I allow my sewage to flow into a neighbor’s pond, against his will, I am without question polluting. I am lowering the value of his property. The obvious remedy is for him to assert his property right and ask me to cease; if I do not, he may ask the public authorities, a major function of which is to protect his and everyone’s property rights, to enjoin my action. This is the normal way in which property is protected in a civilized society.

“It does not follow that in the case cited the neighbor would, invariably, bring an action against the polluter of his pond. This depends, on the one hand, on how much damage he is suffering or about to suffer from the pollution, and on the other, on how much it will cost him to get the matter corrected. If the damage is trivial, he will not press the matter; or if he does, his case probably will be dismissed. Even if the damage is considerable, the cost of proving it might be greater, in which case he would endure it as an unavoidable “neighborhood effect” or minor externality.

4. MOST PEOPLE TEND TO POLLUTE PUBLIC PROPERTY

“If, now, the pond is Lake Erie and has no specific owner, but is said to be “social property” or “in the public domain,” people will take a quite different attitude. To pollute it is to injure will-nigh everyone in general but no one in particular. “Everyone” does not go to court and seek injunction. Hence, it seems one may pollute this “pond” with impunity, there being no owner to object. And so it becomes a public sewer.

“As such, it is at first very useful, for the dilution is so great that no harm is evident; but as the sewage content of the water increases, injury is done to those who would drink the water, to would-be bathers, to fishermen whose catch dwindles, to hunters of waterfowl, and even to people who live along the banks. None of them takes action, however, mainly because he does not consider that it is his to utilize and that he can therefore exclude and enlist the State to help him exclude- all other from its use. In short, Lake Erie is unlike the farm pond, it is not private property. That is why it is polluted. It is public domain, and the public domain easily becomes a public dump.

5. PRIVATE COMPANY PROTECTS PROPERTY TO INCREASE INCOME

“If, now, Lake Erie were converted into private property-let us assume it becomes the recognized property of the “Lake Erie Company,” which proves itself the legal heir of those who bought it from the aborigines- we would have a quite different situation. The company would want to maximize income from the lake, as from a tract of owned farm land, residential property, forest, coal bearing land, or other asset. It might do so by selling rights and by selling water to cities. It would undoubtedly improve its property by stocking with desirable species of fish, deepening ship channels, improving beaches, and so forth.

“The owner would naturally strive to conserve its lake property in the most practical ways possible, so that it would reap a generous income, both now and in the future. At the moment, it might pay to sell to the cities along the lake the right to use it as a sewer; but this would threaten the future income to boaters, drinkers, and other potential users. Only if the cities would pay the company a sum greater than the present value of all the streams of anticipated future income would the lake be turned into a sewer; and that, one may surmise, would cost such cities as Cleveland and Toledo a pretty penny.

6. RESOURCES OF EARTH MOST FULLY CONSERVED UNDER PRIVATE OWNERSHIP

“In all the voluminous literature of conservation, seldom is it pointed out that only under private ownership are the resources of earth most fully conserved, since it is the private owner who has the keenest incentive to maximize his returns IN FUTURE as of having sacrificed to get his property, a fact which has indelibly impressed upon him that it is a scarce good, to the carefully husbanded. Public property, on the other hand, is regarded by the public as a “free good,” unlimited in amount both now and forever. Since it belongs to everyone, no one person can prevent others from using it. Hence, each reason that he had better get his while the getting is good, that is, now. The result, far from conservation, is rapid exploitation and waste. The prevention of pollution is, of course, but a special case of the general principle of conservation.

7. ENVIRONMENTALISTS REACT TO POLLUTION WITH FORCE.

“Environmentalists are wont to visualize land, water and air being protected and conserved by police action. Laws will be enacted by socially minded legislators who somehow are gifted with the knowledge of just how each natural resource should be utilized to achieve the greatest good for the greatest number, both now and in the future. These laws will set the private, profit-seeking, polluting entrepreneur back on his heels. Once such laws are passed and enforced, the problem of pollution will melt away. This is the politician’s solution to what is essentially an economic problem.

“Undoubtedly, changes in the laws are needed. Certainly we need changes which will spell out and define the rights of property owners more clearly and specifically than has been done up to the present. For example, just what are property rights in a flowing stream? In a body of shifting air? In the ocean deep? In the fish that swim, birds that fly, animals that wander now largely at will about the environment? The present laws of property are concerned mainly with the solid land, but this constitutes only about one-fourth of the earth’s surface and represents an even smaller fraction of her resources.

8. WHY NOT TRY PRIVATE OWNERHIP OF OCEAN FISHERIES?

“Gordon Tullock in his booklet, The fisheries..some Radical Proposals” (Columbia, S.C.: Univ. of South Carolina) now out of print, foresees the privatizing of the ocean fisheries. Once the ocean, at least the shallower parts of it, is divided into privately owned plots- and Tullock suggests in some detail how this might be done- it will be “farmed” much more productively than it is at present, he believes.

“There were times when men allowed the land to produce what it would- animals, birds, trees, fruits-and he hunted the product. But it was a hazardous business, and one may imagine every family ranging over many square miles to bag a living..But as to fish and other sea wealth, both organic and inorganic, we are still largely in the hunter stage. We have harnessed only a small fraction of the earth’s resources, yet we are already obsessed with the threat of over-population.

9. RESOURCES IN PUBLIC DOMAIN NEED TO BE ASSIGNED TO PRIVATE DOMAIN

“Man has been slow to define property rights in water and air, not only because of its seeming inexhaustibility, but also because of its fluidity. It is recognized, however, that an owner has a right to pure water on his land, even though it flows from his neighbor’s land. In like manner, a householder has a right to pure air over his house and lot, for what would the latter be worth if overlaid with a vacuum? The growing insistence that power plants, steel mills, and the like cease polluting their neighbors’ air is recognition of this right. “To pollute my neighbors’ land, air, or water is to trespass on his property. The rights of property ownership need to be more sharply delineated and respect for them intensified. For maximum protection and conservation, resources now said to be in the public domain should be reassigned to the private domain. “Not the socialists but the capitalists have the solution to pollution!”

RESULTS OF ONE SECTOR OF INDUSTRY IN PRESERVING RESOURCES following is an editorial from “Western Lumber and Building Materials MERCHANT” FOR APRIL 1972:

THE PROGRESS OF A LIFETIME

“It has been little more than sixty years since a small band of lumbermen, scientists and conservationists initiated purposeful forest management in the United States. The results since then have been amazing, especially in view of the fact that the 13 percent of the nation’s commercial forest land that industry owns produces a third of the total harvest of forest products. A recent National Forest Products Association publication points out some of the more significant accomplishments:

(1) “Complete restoration of Southern forests which sixty years ago were generally believed to be on the verge of extinction.

(2) “Establishment of sustained-yield, multiple-use forestry concepts in all tree growing regions- East and West.

(3) “Increases in tree growth to the point where the nation now grows annually more timer than it harvests, despite the fact that forests have become one of the most important means of satisfying both the material and recreational needs of the American people.

(4) “Reduction of forest acreage lost to wildfire from 30.5 million acres in 1939 to 2.5 million acres in 1965- with subsequent timber savings equivalent to half the current harvest for forest products.

(5) “Higher forest wildlife populations, including spectacular increases in once declining species, also greater variety of animals and birds

(6) “Major increases in recreational opportunity for the general public

(7) “A steady flow of lumber and plywood on a scale that helped make possible the construction of more than 2 million housing units in 1971; also an expanding supply of pulpwood for newsprint, food and beverages cartons, paper napkins and towels and other products.

(8) “Growth of the nation’s forest-based industries to levels where they currently employ nearly two million people and economically support a grand total exceeding 17 million persons.

“Such results are all the more amazing when it is considered that they have been achieved through the improvement of forest management on a comparatively small portion of the total U.S. acreage classified as commercial forest land.

“While some scientifically managed forests exist in the public and non-industrial private sectors of ownership, by far the greatest concentration can be found on holdings of the forest-based industries, which constitute just 13 percent of the nation’s 510 million acres of commercial forest land.

“Next time you hear one of the widely quoted misconceptions regarding America’s forests, ask if they are aware of the facts above. If not, make them aware of what the real facts in the case are. The need for widespread dissemination of accurate information is a vital concern to all connected with the industry and, finally, to every citizen of the country.”

THE ABOVE RESULTS COME FROM ENLIGHTENED SELF-INTEREST

Here is proof of what is accomplished in private industry by “enlightened self-interest.” Controls such as those imposed by the OHSA will never bring about such results. However, OHSA will accomplish the exact opposite by driving more and more businessmen to the wall. Instead of moving property to the private sector, this type of law will move it to the government sector. If it moves far enough in this direction socialism is inevitable. We must move away from government ownership and control if we are to survive as a free people.

“How often has public calamity been arrested on the very brink of ruin, by the seasonable energy of a single man? Have we no such man amongst us? I am as sure as I am of my being, that one vigorous mind without office, without situation, without public functions of any kind, (at a time when the want of such a thing is felt, as I am sure it is) I say, one such man, confiding in the aid of God, and full of just reliance in his fortitude, vigor, enterprise, and perseverance, would first draw to him some few like himself, and then that multitudes, hardly thought to be in existence, would appear and troop about him.” (Edmund Burke, WORKS 5:124)