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Introduction
Unnamed, Ungraded Questionnaire
As a professor in the accounting department, Daddy taught Business Law at BYU for many years. His students were primarily upper division business and accounting majors at BYU, which meant that in most instances they were returned missionaries. My reason for making this observation is that the following explanation by him of the test he gave his students should be of concern for all freedom-loving Americans.
— Hans V. Andersen, Jr
As a college law teacher, I have made it a practice over the years to give a questionnaire to my students on the first day of class in which they were asked to respond to a number of questions regarding their acceptance or rejection of the proposals contained in the Ten Points of the Communist Manifesto. Of course I did not inform them that they were registering opinions about Communism and the questionnaire revealed that very few had ever read the Communist Manifesto. Their responses were therefore presumably not colored by any anti-communist bias. The results of the poll might be surprising to some. They revealed that on the average, my students were approximately two-thirds communist in their political beliefs. That is, on an average, they accepted about two-thirds of the Communist program for socializing a capitalist nation.
Doubtless, much of the explanation for this apparent discrepancy lies in the fact that people are generally ignorant about Communist practices and methods. They do not realize that the political beliefs they are espousing will lead to the same loss of liberty in America as in Russia. (H. Verlan Andersen, Speech on Socialism, 10/8/79)
(Note: Below is a copy of the questionnaire, referred to above. The percentages to the right show the percent of the students who responded with a “Yes,” or “No.” The “No Response” would be the difference, if any.) [p. ii]
Please place a check mark in the yes or no column or fill in the blanks to indicate your response to the following questions. Do not place your name on your paper.
A.
1. Have you read the Constitution within the last four years
Yes/Agree [ ] No/Disagree [ ] No response [ ] 39% 60%
2. Have you ever read the Communist Manifesto?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 12% 86%
B.
Do you favor -
1. Graduated tax rates on income?
Yes/Agree.[ ] No/Disagree [ ] No response [ ] 55% 43%
2. An unrestricted power in government to tax inheritances?
Yes/Agree [ ] No/Disagree [ ] 4% 96%
3. A return to the gold and silver standard of the Constitution?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 39% 60%
4. Federal regulation of transportation and communication businesses?
Yes/Agree [ ] No/Disagree [ ] 54% 46%
5. A system of free public education?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 72% 23%
C.
1. For the purpose of providing for the less fortunate, do you feel government should have the power to completely equalize all incomes?
Yes/Agree [ ] No/Disagree [ ] 2% 98%
2. If not, do you believe the poor have some claim on government for their subsistence needs?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 55% 43%
D.
1. Should government have the power to prohibit child labor?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 67% 30%
2. Should government have the power to set minimum wages?
Yes/Agree [ No/Disagree [ ] No response [ ] 65% 30%
3. Should government have the power to license every economic activity?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 18% 80%
4. Should government be completely without such licensing power?
Yes/Agree [ ] NO/Disagree [ ] No response [ ] 13% 82%
5. If you believe in some; but not complete licensing power, indicate three trades, professions, businesses, etc. which should be licensed:
a)____________________________
b)____________________________
c)____________________________
List three which should not be licensed:
a)____________________________
b)____________________________
c)____________________________ [p. iii]
E.
1. Government should have the power to regulate the operation of all economic activities.
Yes/Agree [ ] No/Disagree [ ] No response [ ] 9% 89%
2. Government should not have the power to regulate any legitimate economic activity.
Yes/Agree [ ] No/Disagree [ ] No response [ ] 24% 73%
3. If you believe in some, but not complete government regulation, do you feel you could draw a precise line between those activities which should and should not be regulated?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 17% 79%
4. Government should have the power to set minimum standards for all goods and services.
Yes/Agree [ ] No/Disagree [ ] No response [ ] 43% 41%
5. If you favor a partial, but not complete set of government standards, name three products or services for which standards should be set by government:
a)____________________________
b)____________________________
c)____________________________
Name three products or services for which standards should not be set:
a)____________________________
b)____________________________
c)____________________________
F.
1. Should government have the power to bring waste lands into production and engage in soil conservation programs?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 77% 19%
2. Should government have the power to control natural resources such as rivers, lakes, forests and mineral deposits?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 78% 19%
3. Should governments sell to private individuals all the land they now own except that which is necessary for defense and protection of rights?
Yes/Agree [ ] No/Disagree [ ] No response [ ] 21% 76%
G.
I believe that there is a distinct line between those circumstances under which the government should compel people against their will and those where it should not.
Yes/Agree [ ] No/Disagree [ ] No response [ ] 48% 47%
I believe that the scriptures provide accurate guidance regarding the distinction between good and bad laws.
Yes/Agree [ ] No/Disagree [ ] No response [ ] 81% 14% [p. iv]
Why Men Establish Governments
One fundamental political truth which will be considered is that men establish governments for the purpose of compelling the citizens to obey a code of private morality. This code is contained in a set of laws which govern human conduct. Such laws may be classified into these two types: (1) Those which condemn and punish certain conduct as evil and harmful; (2) Those which compel the performance of other conduct considered good and beneficial.
When men make laws, and thus determine which conduct is so evil it should be punished and which is so good it should be compelled, they do so by referring to their own religious, ethical or moral beliefs. Indeed there is no other point of reference for distinguishing good from evil. And so no matter who makes the laws, be they kings, dictators, legislatures or the people themselves, they express their most intensely held moral convictions in the laws they favor.
All Government Action Is Either Good Or Evil
A second political fact which may be equally as important as the first is this: Every act which government performs is either morally right or morally wrong. This conclusion is unavoidable because government can act only by using force on humans and force cannot be used on humans without moral consequences.
The Moral Problem Plainly Discernible
If one reflects upon the nature of government and how it functions, the moral problem is clearly seen. It exists to enforce laws which forbid or command certain conduct. But the only type of conduct which a reasonable person would want to forbid is that which he considers evil or wrong, and the only conduct he would want to compel is that which is good.
But the moral problem is most clearly seen when we consider [p. v] how laws are enforced. This is done by depriving the disobedient of either his life, his liberty or his property. Every law which can properly be termed such carries one or more of these three penalties. But the problem as to when it is right and when wrong to put a person to death or take from him his liberty or property is of the utmost moral significance. Both humanity and justice dictate that we punish only those who do evil. Anyone who would inflict death, imprisonment or fine for any other reason must regard himself as a murderer, an enslaver, or a thief.
Thus when government enforces a law, its actions are either morally right or morally wrong. Never are they without moral significance. They are good or evil depending upon whether the conduct prohibited or commanded is good or evil. This makes the study of government extremely challenging. There is no latitude for error. The existence of government is justified only because there exists a code of private morality which should be enforced. But if it misconstrues what that code is, to that same extent it violates it.
The Moral Problem Extends Beyond The Imposition Of Penalties
The propriety of inflicting punishment is not the only moral issue which arises when a law is adopted. In addition to this, the effect of the law on the freedom of all who obey it out of fear of punishment must be considered. The primary purpose for passing a law is to induce those to obey it who would not do so unless threatened with death, imprisonment or fine. Thus the object is to deny the people their freedom to do what the law forbids. If the law proscribes only evil, then no one loses a freedom to which he is entitled because no one has the right to do wrong. But if it forbids conduct which is good or innocent, then it takes from the people a freedom which is rightfully theirs and this cannot be considered other than evil. [p. vi]
The Moral Issue Present In Every Branch of the Law
The moral problem in government action is most clearly seen in the field of criminal law where punishments are inflicted. But it is also the central problem of both tort and contract law because when a case arises in these areas, the court is almost always faced with the problem of deciding whether to take property from one party and transfer it to another. This also is a moral issue. It is either right or wrong, just or unjust, good or evil to forcibly take property from A and transfer it to B.
It has been stated that: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” (Fed. Papers # 51) But the very concept of justice rests upon the assumption that there is a solution to a case which is morally right and that any deviation therefrom is morally wrong. Thus, even in the field of tort and contract law, when government uses force on a litigant, it either dispenses justice or commits an injustice. In other words, it does either good or evil.
The Necessity of a Universal Moral Code
A government which pretends to be just to all must see to it that the code of morality expressed by its laws is properly enforceable against everyone. With the exception of infants and mental incompetents, everyone is expected to conform to the laws or suffer punishment. But unless each member of society believes the conduct which the law prohibits to be evil, and that which it commands to be good, some will be punished for doing that which they sincerely consider to be right while others will be compelled to do that which they regard as wrong. This violates our sense of justice and the only solution is to find a moral code which is known and accepted by all people. But does such a code exist?
The position taken herein is that there is a code of moral behavior which may with justice be enforced against all people regardless of the age or country in which they live. This code is based upon the [p. vii] universal need and desire for freedom. While people differ widely in their objectives, everyone wants to be free to achieve his own, whatever they may be. Everyone wants those elements of freedom — life, liberty of action, property and knowledge — without which no objective can be reached.
Not only does each desire to possess these elements, but each is keenly aware of what injures them and considers such actions harmful and evil when committed. Even during infancy and youth we condemn that which injures our bodies, restricts our movements, deprives us of our property and corrupts our knowledge. With respect to those possessions which are necessary to the exercise of freedom, we all have essentially the same moral code: that which denies or injures them is evil and wrong; that which provides, protects and preserves them is good.
When the laws of a nation conform to this universal moral code, they will be respected and upheld because they suit the paramount need and desire of all people. But when they deviate from it, contention and strife are bound to arise because this is the only standard of moral behavior which is known and accepted by all men. In essence this universal moral code is nothing more nor less than the Christian’s GOLDEN RULE which, according to Holy Writ, “is the law and the prophets.” (Matt. 7:12)
The Tendency To Violate Private Moral Principles Through Public Action
Even though it be true that all men share the same moral code with respect to human freedom, history demonstrates that they have a strong disposition to do through government that which would violate that code if done outside its framework. They seem to divorce their ethical from their political principles and become oblivious to the moral consequences of the laws they favor.
How otherwise do we account for the following? If there is a forcible transfer of A’s property to B committed outside the framework of government, this is universally regarded as criminal. If done in the name of government, many favor it as an act of charity. How does that which was once evil suddenly become good? Is it because its real nature is hidden by being clothed in the robes of legality? [p. viii] Is A any less a victim in the latter case than the former? Is the demoralizing effect on B’s character any less when government does the taking?
Or, suppose that a number of farmers or some other economic group desiring to maintain at a high level the price of their crops, goods or services, band together and use force to restrain competition. How can people condemn this as criminal racketeering when done by the group itself, but regard it as a proper exercise of a licensing power when done by their servants in government? Is an act any less evil when done by an agent than when done by the principal? Is the injury to the public any less when government forces prices up than when racketeers do?
Let us assume further that someone has been convicted of violating such a licensing law but there is no proof that he either intended evil or caused anyone harm. He had only tried to make a living in the licensed occupation by producing something which the public needed and was willing to purchase from him. How can any moral person approve of punishing him? And, yet by a curious twist of logic many do. If it is inherently unjust to punish an innocent person, can a man-made law change this fundamental truth? Is a punishment any less harmful and wrong when inflicted by government than when inflicted by a racketeer?
And how can one who thoroughly detests having his own business and private affairs regulated, and who has neither the means nor the least inclination to interfere privately in the affairs of his neighbors — how can he favor laws which send an army of bureaucrats to do this very thing? Is it any less expensive when done through government? Are government employees more competent to operate businesses than the owners themselves?
What is his reason for favoring regulatory laws anyway? Is he fearful that his neighbors, if left to run their own affairs might commit crimes? If so, there are criminal laws to punish them. Is he concerned that if not regulated they might cause someone harm? If so, there are tort and contract laws which permit restitution for every compensable injury. And where did he obtain the authority to regulate his neighbors anyway? And if he does not possess it, how can he delegate it to government? If he undertook it himself, he would likely consider himself either a mental incompetent, an insufferably arrogant busybody or a criminal. How can he fail to view himself in this same light when he acts through government? [p. ix]
This embarrassing disparity between private and public morality has extremely important consequences to every citizen. But it has peculiar significance to businessmen and all who are concerned with the operation of the free enterprise system. Let us observe why.
The Dangers Of Conflict And Constant Change In Political Affairs
When men abandon the principles of private morality in public affairs, they have no standard to adhere to and disagreements arise. It is probable that there is no subject about which there is more dispute today than that of politics. Not only do the laws of the various nations differ radically one from another, but people of the same nation are found to hold widely varying political opinions. Disagreement is so extensive that it is difficult to find even two people who favor exactly the same set of laws.
Much of this contention centers around the role of government in economic affairs. Should it engage in welfare state activities and if so to what extent? What limit, if any, should be placed on the amount taken from the “haves?” To what class of people should aid be extended and to what standard of living should they be raised? Is it proper for government to withhold incomes for such purposes as social security, medicare, old age pensions and unemployment insurance and if so how much? Should wages, hours of labor and working conditions be regulated and, if so, in what particulars? How much education are children (or adults) entitled to at state expense? Which professions, trades and businesses should be licensed and how stiff should licensing requirements be? How thoroughly should the use of property be controlled through zoning laws? To what degree should government dictate the type of products which may be produced and sold, the safety standards which must be observed and the pollution limits which are permissible?
Questions of this type could be continued for pages with no one able to give a logically defensible answer or to explain why the answer he does give should not be something else. Not only are people in hopeless disagreement over such matters but the opinions of any one person are ofttimes subject to constant change. This confusion and uncertainty extends into the ranks of the lawmakers with [p. x] chaos the result. At each legislative session, they spew forth a veritable torrent of new measures which add to, amend or repeal the equally ill-considered acts of their predecessors. This instability not only threatens to destroy our free enterprise system but also the foundations upon which it rests. Perhaps there is no better description of the dangers flowing from a voluminous and constantly changing set of laws than the one contained in #62 of the Federalist Papers authored by James Madison and Alexander Hamilton from which the following is quoted:
The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.
There is no group which should be more anxiously concerned with finding a solution to the problems enumerated above than the owners and operators of economic enterprises. As Madison and Hamilton have pointed out, the evil effects of multitudinous and unstable laws falls most heavily upon them. Not only are they disabled [p. xi] from making and executing long-range plans, but the freedom to make contracts and manage their own concerns is denied.
If the laws dictate the employment contract by specifying wages, hours and working conditions; if they establish product, safety and pollution standards; if by means of consumer protection acts they govern relations between seller and buyer; if they regulate profits through graduated tax rates and price controls; if they license all businesses and determine who may enter which; if the securities laws control financing; if they do all of this and much, much more, what remains for the businessman to manage? And if the trend continues as in the past, what future is there for those who plan a business career?
As the role of government in economic affairs increases, that of the owner and operator decreases. Their area of decision making will be reduced with every new rule and regulation until they become no more than tools of the bureaucracy, doing their will and carrying out their decrees. At that point, there will be no further need for studying the principles of private business and contract law. Business colleges will then be concerned almost exclusively with teaching the current rules and regulations of government. This possibility should induce every student and practitioner of business to take a strong and continuing interest in political matters.
Where Does One Find The Answer To The Moral Problem Of Government?
To give us that guidance, without which one cannot hope to find the correct answer to political questions which are essentially moral, we shall go to the source of moral law. We shall consult the prophets and the scriptures and those whom they approve. No apology is offered for doing this. Anyone who defends a particular legal philosophy must use some code of ethics as its foundation because that is what a set of laws consists of. Those laws are a concise description of that conduct which they decree to be punishable evil and can have no other source than the code of ethics of those who sponsor them.
If it be objected that the bias of any one particular religion or moral code should not be incorporated into the laws which people of many faiths are compelled to obey, we answer that there is no help [p. xii] for this. No one who favors a particular set of laws can escape that accusation. There can be only one set of laws at a time and, thus, only one moral code, and every member of society must conform to it regardless of his religion or lack thereof. But our particular defense to that charge is that a doctrines of the Latter-day Saint Church are in complete harmony with the moral code expounded in the United States Constitution which every American citizen is obligated to uphold until that document be amended by a three-fourths majority of the states as therein provided. Justification for using the moral code of the Constitution rests in the fact that it is founded on the universal need and desire for freedom and constitutes the only code which may, with justice, be enforced against all men.
But the author has another reason to resort to the teachings of his faith and the Founding Fathers for guidance. He has been instructed by his superiors to do so. Those who teach subjects involving political principles at the Brigham Young University are under direction from the controlling body of this institution to harmonize their teachings with “the principles of government as vouchsafed to us by our Constitutional Fathers.” In a letter written in 1967 by the late President David O. McKay to the BYU Administration and Faculty, explicit instructions were given regarding what should and should not be taught here regarding laws and government. This letter was considered of sufficient importance that the entire Board of Trustees approved it;
...as the policy of the Board of Trustees for the guidance of the Board, the University Administration, and present and prospective members of the Faculty.
It may not be inappropriate to present herewith extracts from the letter that its true meaning may be expressed:
(2) In these days when not only religious standards but some of the Ten Commandments themselves are under attack, I hope that you and the faculty will go the extra mile in seeing that the religious doctrines of our Church are taught in their fullness so that students will have proper religious convictions for all decisions which they have to make. The trends of the time in the opposite direction are so strong that it will require extraordinary vigilance on the part of all of us to resist them ... I would urge all members of the faculty, whether they have a Church position or not, to teach principles of the Gospel and standards in every class [p. xiii] whenever the opportunity arises, whether that class be a class in theology or otherwise.
(3) I cannot help but think that there is a direct relationship between the present evil trends which I have above indicated, and the very marked tendency of the people of our country to pass on to the state the responsibility for their moral and economic welfare. This trend to a welfare state in which people look to and worship government more than their God, is certain to sap the individual ambitions and moral fiber of our youth unless they are warned and rewarned of the consequences. History, of course, is replete with the downfall of nations who, instead of assuming their own responsibility for their religious and economic welfare, mistakenly attempted to shift their individual responsibility to the government.
I am aware that a university has the responsibility of acquainting its students with the theories and doctrines which are prevalent in various disciplines, but I hope that no one on the faculty of Brigham Young University will advocate positions which cannot be harmonized with the views of every prophet of the church, from the Prophet Joseph Smith on down, concerning our belief that we should be strong and self-reliant individuals, not dependent upon the largess or benefactions of government. None of the doctrines of our Church give any sanction to the concept of a socialistic state.
It is a part of our “Mormon” theology that the Constitution of the United States was divinely inspired; that our Republic came in existence through wise men raised up for that very purpose. We believe it is the duty of the members of the Church to see that this Republic is not subverted either by any sudden or constant erosion of those principles which gave this Nation its birth.
In these days when there is a special trend among certain groups, including members of faculties of universities, to challenge the principles upon which our country has been founded and the philosophy of our Founding Fathers, I hope that Brigham Young University will stand as a bulwark in support of the principles of government as vouchsafed to us by our Constitutional Fathers.
In accordance with the Board’s policy as above set forth, there has been included herein scriptural references and quotes from General Authorities, the Founding Fathers and others, which it is hoped will aid the student in understanding the America Constitutional system of government and the principles of private morality upon which it was built. [p. xiv]
There is a law, irrevocably decreed in heaven before the foundations of this world, upon which all blessings are predicated
And when we obtain any blessing from God, it is by obedience to that law upon which it is predicated.
(D&C 130:20–21)
Therefore, choose you by the voice of this people, judges, that ye may be judged according to the laws which have been given you by our fathers, which are correct, and which were given them by the hand of the Lord.
(Mosiah 29:25)
[p. 1]
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