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Felix Frankfurter

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If one starts with the assumption that, in the absence of specific Congressional authority, a fixed rule of law precludes contracting officers from providing in a Government contract terms reasonably calculated to assure its performance even though there be no money loss through a particular default, there is no problem. But answers are not obtained by putting the wrong question and thereby begging the real one.
--
Dissenting, Priebe and Sons v. United States, 332 U.S. 407, 420 (1947).

 
Felix Frankfurter

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Men are born free, that since they begin with no government, they must therefore institute government by voluntary agreement, and thus government must be their agent, not their superior. Since volition is a function of the individual, the individual has the precedent right. Then even if it was presumed that government did equate roughly with the moral shorcomings of humanity, it should still be limited and subsidiary. If everyone were invariably honest, able, wise, and kind, there should be no occasion for government. Everyone would readily understand what is desirable and what is possible in given circumstances, all would concur upon the best means toward their purpose and for equitable participation in the ensuing benefits, and would act without compulsion or default. The maximum production was certainly obtained from such voluntary action arising from personal initiative. But since human beings will sometimes lie, shirk, break promises, fail to improve their faculties, act imprudently, seize by violence the goods of others, and even kill one another in anger or greed, the government might be defined as the police organization. In that case, it must be described as a necessary evil. It would have no existence as a separate entity, and no intrinsic authority; it could not be justly empowered to act excepting as individuals infringed one another's rights, when it should enforce prescribed penalties. Generally, it would stand in the relation of a witness to contract, holding a forfeit for the parties. As such, the least practicable measure of government must be the best. Anything beyond the minimum must be oppression.

 
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An employer has no business with a man's personality. Employment is a specific contract calling for a specific performance... Any attempt to go beyond that is usurpation. It is immoral as well as an illegal intrusion of privacy. It is abuse of power. An employee owes no "loyalty," he owes no "love" and no "attitudes"--he owes performance and nothing else. .... The task is not to change personality, but to enable a person to achieve and to perform.

 
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It seems to me that the real problem is the mind itself, and not the problem which the mind has created and tries to solve. If the mind is petty, small, narrow, limited, however great and complex the problem may be, the mind approaches that problem in terms of its own pettiness. If I have a little mind and I think of God, the God of my thinking will be a little God, though I may clothe him with grandeur, beauty, wisdom, and all the rest of it. It is the same with the problem of existence, the problem of bread, the problem of love, the problem of sex, the problem of relationship, the problem of death. These are all enormous problems, and we approach them with a small mind; we try to resolve them with a mind that is very limited. Though it has extraordinary capacities and is capable of invention, of subtle, cunning thought, the mind is still petty. It may be able to quote Marx, or the Gita, or some other religious book, but it is still a small mind, and a small mind confronted with a complex problem can only translate that problem in terms of itself, and therefore the problem, the misery increases. So the question is: Can the mind that is small, petty, be transformed into something which is not bound by its own limitations?

 
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"There are only a certain number of people who are begging. These are the same people and the assumption that begging is increasing is in fact wrong because it is the same people who keep moving about."

 
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I propose to receive the surrender of the Army of N. Va. on the following terms, to wit: Rolls of all the officers and men to be made in duplicate. One copy to be given to an officer designated by me, the other to be retained by such officer or officers as you may designate. The officers to give their individual paroles not to take up arms against the Government of the United States until properly exchanged, and each company or regimental commander sign a like parole for the men of their commands. The arms, artillery and public property to be parked and stacked, and turned over to the officer appointed by me to receive them. This will not embrace the side-arms of the officers, nor their private horses or baggage. This done, each officer and man will be allowed to return to their homes, not to be disturbed by United States authority so long as they observe their paroles and the laws in force where they may reside.

 
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