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

Roger F. Gay is a professional analyst and director of Project for the Improvement of Child Support Litigation Technology. Other articles by Roger F. Gay can be found at Fathering Magazine and the MND archive.
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