At the heart of the problems with Disney and Florida is America’s addiction to corporatism. It is the use of government power for the benefit of government bosses. In other words, it is a symbiotic relationship between government and private enterprise that gives government officials corporate largesse and private enterprise a virtual monopoly. It is to capture the power of the state to increase private wealth at the expense of others.
Corporatism is immoral because it corrupts the state to give governmental power to a boss. It is economically counterproductive because it stifles competition. It is unconstitutional because it violates equal protection and, in Florida’s dispute with Disney, freedom of speech.
In the 1960s, when Walt Disney came across 25,000 acres of land outside Orlando, Florida, for his theme park, he struck a deal with the state that gave his company control extraordinary on the ground in exchange for the construction of the park. For Florida, it was a win in terms of tourism dollars and job opportunities. For Disney, it was a victory in terms of alleviating local regulatory constraints and certain state and local taxes.
Last week, after numerous public rows between Disney staff and Florida officials over a new Florida law prohibiting government teachers from teaching sexual orientation and gender identity to children in 5, 6, and 7, Florida enacted a law repealing the contract between itself. and Disney. It appears the repealing legislation was in retaliation for Disney’s public opposition to the school curriculum legislation.
Can the government constitutionally favor one company over others in the same situation by granting relief from legal obligations to one and not to the others? Can the government constitutionally punish a company for the exercise of free speech by its officers and employees? The short answer to both questions is: No.
Here is the backstory.
The 14th Amendment was drafted to require states to treat similarly situated persons and entities equally. By isolating Disney and granting it special privileges that other theme parks have not received, Florida violated the amendment’s equal protection clause. It also kicked the balance of free enterprise by making it easier and cheaper for Disney to operate its theme park than for its competitors.
Every time the government favors one competitor over another, economic and constitutional problems arise. Economically, the consumer suffers by having less choice and, in this case, having a juggernaut with little competition. The absence of meaningful competition allows Disney to impose a “take it or leave it” pricing structure and product offering on its customers.
Further, by allowing Disney to pay less tax, Florida shifted Disney’s tax burden to other taxpayers, thereby treating them in a manner inconsistent with equal protection.
I am not making an economic argument for egalitarian regulation; this is what the equal protection clause presumably requires. This is an economic argument in favor of the absence of regulation, therefore of corporatism. In this environment, competition will flourish, products and services will be improved, consumer costs will be reduced, and consumer choices will be expanded.
Florida’s state constitution requires the state to operate a school system. This has produced in Florida and elsewhere an extremely expensive, highly ineffective, and intellectually dangerous educational program. Public schools have guaranteed customers – students; guaranteed income — taxpayers and no effective competition. It’s a recipe for failure.
It’s also a recipe for ideological indoctrination – like, “The government is here to help you” or, “Lincoln was a great president” or, “All patriots support the nation’s wars” and – today – “You can be any gender you want, or no gender.
Florida had an illicit contract with Disney that it tampered with for unconstitutional purposes — punitive speech. The First Amendment nullifies the government’s power to regulate, reward, or punish speech. It assumes that the listener, not the government, can decide which speech to accept and which to reject. Moreover, the purpose of the amendment is to encourage open, broad, vigorous, even caustic debate about government policies and personnel.
Government interference in contracts for punitive purposes and government sanctioning of speech because of its content is always unconstitutional.
All this happened because of corporatism. Corporatism originated shortly after the 13 colonies seceded from Britain and began to form corporations, often of those who had lent money to the colonies to fight the revolution. At the time, companies were considered agents of the state, which freed them from competition.
One of the purposes of the Commerce Clause in the Constitution is to prevent states from hindering commerce through monopolies and tariffs.
It would be 100 years before the Supreme Court abandoned its “beneficiary of privileges” theory of corporations and viewed corporations as “voluntary aggregates of investors” – investors recognizing that corporations have only the rights and powers that their founders gave them.
In the case of Florida and Disney, the symbiotic relationship between the two is dangerous because Disney wields state power without its constitutional restraints, and Florida politicians understandably expect public flexibility and contributions. Disney policies.
Add to all this the violation by public schools of the parent/child relationship – partially corrected by the new legislation – by interfering in an area of moral learning that the Supreme Court has left to parents, and you have the monstrosity constitutional which is the offspring government which does not admit any constraint.
Thomas Jefferson, who wrote that our rights come from God, and James Madison, who wrote that individuals are sovereign, would not recognize government in America today. It is a force without reason. It is power without restraint. And he considers our natural rights as privileges that he can deny us.
Why do we allow this?
• Andrew P. Napolitano is a former law professor and New Jersey Superior Court judge who has published nine books on the United States Constitution.