Article on subject

Georgia Supreme Court Abolished Human Rights

May 6, 2003
by Roger F. Gay

On April 29th, the Georgia state supreme court issued a decision that
dramatically reformulates the relationship between individuals and the
state. The state was granted unlimited power to act arbitrarily against
individuals. The foremost line of defense, individual rights that are
regarded as "unalienable" by the United States Constitution, has in
effect been abolished.

In Georgia Department of Human Resources v. Sweat et al., the high
court overturned a lower court decision that found the state's child
support laws unconstitutional. (related article) Current law prescribes
the amount of child support to be awarded by a simple, arbitrary
formula that state court judges must presume is correct. The lower
court pointed out that the formula had been formulated and adopted
without serious technical review, is not based on economic studies, is
not rationally related to the purpose of determining child support
amounts reasonably related to family circumstances, and has not been
subjected to serious technical review since its adoption. It further
identified the motive for the use of the formula, which arbitrarily
increased the amount of child support awarded, as the pursuit by the
state of increased federal funds. Based on case precedent, it also
identified three basic principles upon which constitutionally
acceptable court-ordered child support decisions must be based.

The high court applied a theory of constitutional interpretation in
which individual rights diminish across a spectrum of political issues.
In relation to laws regarded as being part of a body of "social
policy," individual rights are at their weakest; offering states the
greatest authority to practice en masse "social engineering." It was
this lowest standard that the high court applied; effectively
eliminating individual protection against arbitrary state intrusion and
manipulation. The improper application of the standard sets a precedent
that leaves Georgians defenseless against arbitrary treatment,
regardless of the policy issue involved, so long as the state
government has the will to intrude.

There are reasonable applications of the theory, such as in the
administration of welfare benefits. States control the range and value
of entitlements based on general considerations; including the total
amount they are willing to spend. Constitutional rights do not extend
to forcing states to fix their entitlements at levels that satisfy
individual recipients. Recipients are only entitled to what states
decide to provide, even if entitlements may be quite arbitrary or
irrational when judged from an individual's perspective. Neither state
constitutions nor the federal constitution guarantee individual
financial support from the government.

That is not to say that individual rights and limits to state powers
have not shaped entitlement systems. The fact that we refer to welfare
system benefits as "entitlements" is itself the result of guaranteed
individual rights and a restriction on states against acting in an
arbitrary manner. When a state offers a benefit based on circumstance,
then all people similarly situated are "entitled" to the benefit.
Constitutionally, states are not allowed to discriminate on the basis
of sex, race, or other arbitrary factors that do not mitigate the
factual circumstantial criteria that qualify individuals for
entitlements.

You also, apparently, have no individual constitutional right to force
a change in the rate of taxation. Taxation is regarded as "economic
policy" and is subject to the same diminished level of individual
rights as "social policy." Although it is difficult to find a
straight-forward logic to justify, people with higher income have been
required to pay a higher percent of their income in taxes, rather than
simply more in taxes in proportion to their income (so-called "flat
tax"). The latter might more easily be explained by the logic suggested
in entitlement theory. On the other hand, the government cannot
properly impose tax rates on individuals that differ from those in the
tax tables that everyone else is subjected to.

In the 1980s and 1990s, radical reformists pushed to shift private
domestic relations cases into the sphere of "social policy" with some
arguments leaning into the realm of "economic policy." (Taxpayers
support children on welfare.) Dramatic reforms such as the Child
Support Enforcement Amendments of 1984 and the Family Support Act of
1988 offered billions of dollars to states to reformulate the content
of their family laws and the legal process used in their application.
New federal laws designed to reformulate the relationship between
states and individuals have been passed in every election year since.
(The practice of forcing men to support children after they have proven
through DNA tests that they are not their fathers is the result of
reforms.)

Reformists claimed a nexus between private child support orders and
welfare. If a relatively poor mother does not receive child support,
she might qualify for welfare benefits, which in some cases would leave
the state to support children that could be supported by their fathers.
This was an important argument for the sake of justifying federal
involvement in domestic relations law ? an area in which generally
the federal government is not constitutionally allowed to regulate. The
solution to the synthetic conundrum is blazingly obvious. Those who do
receive welfare benefits are subject to welfare system rules. There is
a connection between poor mothers receiving welfare and poor fathers
who are able to provide some portion or perhaps all of the child
support need.

There is however, no nexus that justifies the treatment of all domestic
relations cases under the sometimes arbitrary rules of the welfare
system. Whether or not a father who has an income of $100,000 per year
is paying sufficient child support to a mother who makes $75,000 and
has remarried to a man who makes $250,000 has no impact whatsoever on
the welfare system. States have no legal basis for the reclassification
of such cases from the realm of private issues, handled by private
agreements or civil court actions, to that of a state-sponsored "social
policy" issue that state governments may manipulate relative to
political mood. States have no legal interest with which to
constitutionally justify forced, arbitrary, en masse, formulaic
treatment of individuals involved in non-welfare family law cases.

What we have here is a situation that started with the federal
government passing laws on a specific subject that lies beyond its
constitutional authority. Billions of federal dollars were used in
effect to bribe states into accepting a new federal-state relationship
that required states to abandon laws that developed through 200 years
of history within the context of state and federal constitutions. In
order to keep the funding, the Georgia supreme court has now
arbitrarily reclassified a private issue as a social policy issue that
is not subject to constitutional restraint; i.e. neither individual
rights nor restrictions on arbitrary treatment by the state apply. By
doing so, the Georgia court redefined the basic relationship between
individuals and the state.

The decision has sweeping consequences. It sets a precedent that
constitutional rights can be eliminated merely as the result of
political will. You have no right to claim that your house
(specifically) belongs to you if the government considers housing
(generally) to be within the scope of social or economic policy. Your
property may be redistributed as the government sees fit. Your children
are not in a legal sense yours, so long as the government considers
food, housing, education, safety, or the health of children within its
scope. As a practical matter, individual rights no longer exist.
Individuals are only entitled to what legislators and bureaucrats
allow.

Another article may delve more deeply into the specific details of the
new decision. To understand the unconstitutionality of the child
support laws in Georgia, the first source is the lower court's
decision. But there is a detail in the high court decision that should
be dealt with along with the improper application of the diminished
rights standard. The high court claimed that the child support
formula's "means of determining the amount of support to be paid are
not arbitrary in any sense of the word." Not only did the supreme court
judges tell a bold-faced lie in making that statement, their bizarre
logical construction in support of the lie yet again reformulates basic
constitutional relationships.

Numerous articles have been written about the arbitrary nature of the
guidelines. I will not provide a complete analysis in this article.
(See the lower court's decision for a summary.) One way to point out
the absurdity of the child support formula is through example; the
amounts ordered to be paid by parents who are "similarly situated." The
difference in treatment simply because one parent is designated as the
child support payer and the other a recipient is astonishing. Parents
can have nearly equal income and differ in the amount of time they
spend caring for their children by only one day a week; but the child
support payment dictated by the formula can force a difference in
financial obligation that can amount to hundreds of dollars per meal
for the extra night children spend with one of the parents.

In denying the arbitrary construction of the formula, the high court
cited precedent; "The trial court is obligated to consider whether such
support is sufficient based on the children?s needs and the
parent?s ability to pay.? In fact, under current law, the trial
court is required to presume that the results given by the formula are
correct. There are numerous examples in case law delivering us from the
grip of statutory presumptions that are inappropriate in even a single
case ? regardless of the discretionary powers that trial judges
generally have. For example, neither statute nor government employment
practices may presume that work late in pregnancy threatens the health
of a mother or unborn child or diminishes the capacity of a woman to
work, regardless of the fact that it may in some cases, or even if the
presumption is most often true. The presumption was declared
unconstitutional based on a single case in which the law was applied to
a woman whose doctor had declared her fit to work. The argument by the
high court was a sly but obvious avoidance of established
constitutional protection.

Providing more evidence in support of incredulity, the question before
the court was not whether amounts dictated by the formula are
"sufficient." Just the opposite; are amounts dictated arbitrarily high?
Of course arbitrarily high amounts will pass a sufficiency test; but
not one designed to test the rational relationship between actual
circumstances and the amount ordered. In addition, the parents had a
written agreement that specified child support. The agreement had been
overturned by an administrative agency involved in child support
collections. (Administrative agencies exercising such powers, and in
contradiction to a private contract, raises yet another set of
constitutional issues.)

The high court not only eliminated due process, but the essence of
common law practice upon which our sense of due process is based. The
law is unconstitutional, but the high court claims that it is not
because individual judges may, at their discretion (and with a lot of
extra work to reformulate child support rules and justify
contradictions to the statute in writing), do the right thing instead
of accepting the dictates of the law. Under the constitution, a statute
that "manifestly infringes upon a constitutional right or violates the
rights of the people" is unconstitutional once and for all. If it
violates the constitution in a single case, it is unconstitutional.

A law that imposes an arbitrary child support formula that must be
presumed correct, violates the federal constitution's guarantee of due
process (I believe first and foremost) by creating an intolerable
barrier to consideration and proper treatment of actual family
circumstances and their rational relationship to child support
decisions. The high court reformulated common law to a state in which
millions of future litigants will be at the mercy of individual judges,
begging for decisions that contradict statute for the sake of
individual justice. Few will succeed.

Roger F. Gay