Re: lack of evolutionary pressures (was Re: An end to "court (fwd)

Forwarded message:

> Subject: Re: lack of evolutionary pressures (was Re: An end to "court (fwd)
> From: Firebeard <stend+cypherpunks@sten.tivoli.com>
> Date: 23 Aug 1997 12:30:45 -0500

> 	No, the federal government is barred.  The state governments
> are free to do so (constrained by their own constitutions).  For that
> matter, the federal government shouldn't be involved in the business
> of affecting the specific welfare of individuals, so it should be a
> moot issue.

This I agree with completely. At no point in the Constitution does it give
the federal government the job of welfare. It also does not provide for any
mechanism for law enforcement (ie DEA, NSA, FBI, etc.) outside of taxes and
inter-state commerce.


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   |  -====~~mm-'`-```-mm --'-                         Jim Choate       |
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At 01:58 PM 8/23/97 -0500, Jim Choate wrote:
>This I agree with completely. At no point in the Constitution does it give
>the federal government the job of welfare. It also does not provide for any
>mechanism for law enforcement (ie DEA, NSA, FBI, etc.) outside of taxes and
>inter-state commerce.

So we are all in agreement:  when I mentioned Norplant briefly being a
precondition for receiving welfare benefits, I was talking about a example
that I recall to have occurred in a single state. [I can't remember the
state. Anyone?] It appears you agree that States are allowed by the US
Constitution to impose such requirements, subject to the state's own
constitutions.


--Lucky Green <shamrock@netcom.com>
  PGP encrypted mail preferred.
  DES is dead! Please join in breaking RC5-56.
  http://rc5.distributed.net/

At 1:48 PM -0700 8/23/97, Lucky Green wrote:
>At 01:58 PM 8/23/97 -0500, Jim Choate wrote:
>>This I agree with completely. At no point in the Constitution does it give
>>the federal government the job of welfare. It also does not provide for any
>>mechanism for law enforcement (ie DEA, NSA, FBI, etc.) outside of taxes and
>>inter-state commerce.
>
>So we are all in agreement:  when I mentioned Norplant briefly being a
>precondition for receiving welfare benefits, I was talking about a example
>that I recall to have occurred in a single state. [I can't remember the
>state. Anyone?] It appears you agree that States are allowed by the US
>Constitution to impose such requirements, subject to the state's own
>constitutions.

There's a landmine here, of course. Namely, the issue of whether states may
impose restrictions which are "unconstitutional." To some states rights
folks, as I assume Jim Choate may be, the answer is often "of course." To
some libertarians, the answer is often "of course not." A good example to
consider is "free speech." The First Amendment talks about Congress shall
make no law...does this mean California may ban certain books, restrict
certain religions, or impose censorship on the press?

(Most folks would say "Of course not." But on what basis can individual
states and municipalities override the Second Amendment?)

Anyway, this is not the subject I plan to discuss.

Getting back to Norplant and the putative reproductive rights of welfare
mothers, consider a series of laws or rules:

* Case 1: Recipients of public assistance must agree to be sterilized or
have Norplant implants.

* Case 2: Residents of public accomodations may not own or possess guns of
any type.

* Case 3: Recipients of public assistance may not practice Islam.

* Case 4: Residents of public accomodations or recipients of public
assistance must not co-habit with other adults, especially of the opposite
sex.

How do these differ?

Case 1 is the situation being discussed by Lucky and  Jim, modulo the issue
of whether it was the Federal government or some local state which passed
the law. This case is complicated by the oft-discussed issue of
"reproductive rights." The Founders chose to say nothing about
reproduction, and the issue has raged for much of this century (Sanger,
birth control legality, abortion issues, etc.).

Case 2 is also a real one, involving a law in Chicago forcing residents of
Cabrini Green and other such "projects" to turn in their guns, with random
inspections to ensure compliance. This has been controversial, and I don't
know what the current status is. Again, whether this was a local or federal
rule is not really the point, as the next case will show.

Case 3 is fictional, and would of course be immediately subject to an
injunction against enforcement, with rapid overturning by the various
courts which heard it. Why? Because regardless of whether the law were
passed by the state of Illinois, or California, or by the federal
government, it would be seen by nearly all as a slam dunk violation of the
rights of religious freedom.

But why is it really any different from Case 2? Probably because of the
totemic role freedom of speech and freedom of religion play in American
society. The First Amendment is apparently "more equal" than the Second
Amendment. (Shown also in the treatment of ex-convicts: we ban them from
owning guns and from voting, but would not think of imposing speech or
religion rules on them. Why? It can't just be the "danger" issue, as that
would not explain the ban on voting. And certainly some religions are "more
dangerous" for an ex-con to fall into than owning a gun would be. Many
issues. As an aside, what if the ex-con joined a church consisting of
"known felons"? As many parole rules (and parole is now essentially a part
of the incarceration process and cannot be avoided, except by doing the
full sentence) ban association with known felons, what does this mean for
the freedom to practice one's religion?

How about Case 4. A woman receiving welfare is told she may not sleep with
a guy, or at least he had better be gone by the time the welfare
monitor--sort of like the floor monitors Soviet apartment buildings used to
have!--checks up on the welfare mothers. Doesn't this violate basic
constitutional rights to associate freely with whom one wishes?

The rationale for Case 4, of course, is that the goal of welfare (cough
cough) is to give _single mothers_ (or single fathers, in a much smaller
percentage of cases) assistance, not to encourage people to shack up but
avoid becoming formally married. But it still rankles, of course. As all of
the cases do.

And the same logic for Case 4 really carries back to Case 1: the purpose of
welfare is not to subsidize the production of more children. (Even the
liberals are getting worried about this one. A local rag, "The Metro,"
reported on a series of unemployed, unemployable, welfare moms and the
like. One 23-year-old woman has 3 children, is unmarried, and is working on
having 3 more, because, as she explained to the exasperated interviewer: "I
always like the idea of having three girls and three boys.")

To me, as a libertarian of long standing, what these cases all indicate is
that when the State has the power to give, it acquires the power to take
away, and that such paradoxes such as described above are essentially
unavoidable.

The only real solution is the natural one: people should not have children
unless they have prepared themselves for the process of having children,
through savings, good jobs, a stable family situation, a supportive family,
etc.

"But what about the children?" is no longer compelling to most of us, which
is why welfare is being cut out, even by Comrade Clinton.  There is nothing
right about having some people scrimp and save until they can afford to
have children while 23-year-old dingbats already have 3 children on welfare
and are planning for more.

And everybody here should read Charles Murray's "Losing Ground." Murray
studied the statistics from the early days of "general relief" throught
"Great Society" to the present, and concluded, convincingly, that the
tremendous rise in black illegitimacy is correlated to the rise of welfare.
Hardly surprising that when a 15-year old black girl can leap from being
low status in black society to high status, with her own apartment and with
a check every month, merely by getting pregnant, that a whole lot of black
teen girls will do just that. And that the rules against married people
getting welfare will ensure that few marriages occur.

(As the Cato Institute showed a couple of years ago, the average package of
benefits for a single mother of two averages out to the equivalent of about
$13-15 an hour, or about $27,000 to $30,000 a year that she would have to
earn in the outside world to equal her welfare/AFDC/WIC package.)

This is why things are the way they are. It's gonna change. And I for one
will watch the starving children and place their deaths at the doorstep of
the U.S.  government for having adopted a seemingly kindly but actually
genocidal policy.

(By the way, one can imagine a fifth case, to connect more close to crypto:

* Case 5: Residents of public accomodations must agree to escrow their
crypto keys with the government.

--Tim May

There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

On Sat, 23 Aug 1997, Tim May wrote:
> 
> There's a landmine here, of course. Namely, the issue of whether states may
> impose restrictions which are "unconstitutional." To some states rights
> folks, as I assume Jim Choate may be, the answer is often "of course." To
> some libertarians, the answer is often "of course not." A good example to
> consider is "free speech." The First Amendment talks about Congress shall
> make no law...does this mean California may ban certain books, restrict
> certain religions, or impose censorship on the press?
> 
> (Most folks would say "Of course not." But on what basis can individual
> states and municipalities override the Second Amendment?)

Most folks would, today, but this was not always a given in our
constitutional jurisprudence.  It's a post-14th Amendment
development, the Bill Of Rights having been understood by the
SCt to have been applied to the states by virtue of the 14th
Amendment's restrictions on state governments.  It's never 
been an impeccable logic, but it seems to get to the right
result.  For most folks, anyway:)
MacN

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In <Pine.SOL.3.96.970823202919.637D-100000@cavern.uark.edu>, on 08/23/97 
   at 08:33 PM, Mac Norton <mnorton@cavern.uark.edu> said:

>On Sat, 23 Aug 1997, Tim May wrote:
>> 
>> There's a landmine here, of course. Namely, the issue of whether states may
>> impose restrictions which are "unconstitutional." To some states rights
>> folks, as I assume Jim Choate may be, the answer is often "of course." To
>> some libertarians, the answer is often "of course not." A good example to
>> consider is "free speech." The First Amendment talks about Congress shall
>> make no law...does this mean California may ban certain books, restrict
>> certain religions, or impose censorship on the press?
>> 
>> (Most folks would say "Of course not." But on what basis can individual
>> states and municipalities override the Second Amendment?)

>Most folks would, today, but this was not always a given in our
>constitutional jurisprudence.  It's a post-14th Amendment development,
>the Bill Of Rights having been understood by the SCt to have been applied
>to the states by virtue of the 14th Amendment's restrictions on state
>governments.  It's never  been an impeccable logic, but it seems to get
>to the right result.  For most folks, anyway:)

Well i think that you also have to take into account the political setting
of the times. The Framers of the Constitution were representatives of the
States all of which had 1st Amendment protections in their State
Constitutions. Their concerns were not with the States but with a Federal
Government overriding rights already protected by the States.



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- ---------------------------------------------------------------
William H. Geiger III  http://www.amaranth.com/~whgiii
Geiger Consulting    Cooking With Warp 4.0

Author of E-Secure - PGP Front End for MR/2 Ice
PGP & MR/2 the only way for secure e-mail.
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- ---------------------------------------------------------------

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On Sat, 23 Aug 1997, William H. Geiger III wrote:
> 
> Well i think that you also have to take into account the political setting
> of the times. The Framers of the Constitution were representatives of the
> States all of which had 1st Amendment protections in their State
> Constitutions. Their concerns were not with the States but with a Federal
> Government overriding rights already protected by the States.

Perhaps so, but that says nothing about the federal gov't 
enforcing the First Amendment to the US Constitution against
the states, irrespective of the provisions of their constitutions
or other laws.  It is a difficult thing to get from "Congress 
shall make no law" to "No gov't anywhere in this country 
shall make any law," but we've managed to do it, probably to
our credit on the whole.
MacN

At 10:04 PM -0700 8/23/97, Mac Norton wrote:
>On Sat, 23 Aug 1997, William H. Geiger III wrote:
>>
>> Well i think that you also have to take into account the political setting
>> of the times. The Framers of the Constitution were representatives of the
>> States all of which had 1st Amendment protections in their State
>> Constitutions. Their concerns were not with the States but with a Federal
>> Government overriding rights already protected by the States.
>
>Perhaps so, but that says nothing about the federal gov't
>enforcing the First Amendment to the US Constitution against
>the states, irrespective of the provisions of their constitutions
>or other laws.  It is a difficult thing to get from "Congress
>shall make no law" to "No gov't anywhere in this country
>shall make any law," but we've managed to do it, probably to
>our credit on the whole.

I don't find it surprising. Besides the more recent, and of course more
heavily relied upon, "equal protection" language of the 14th, I think
another important factor is this: states admitted to the Union were
expected to adhere to and uphold the U.S. Constitution, and Congress even
scrutinized states for evidence of this compliance.

(And a clue comes from the oaths of office taken by officials in _all_
states, so far as I know: they swear to uphold the U.S. Constitution. Now
how well they do this, and whether they adhere to the original intent, is
open for discussion. Still, food for thought.)

In looking over some search engine returns on this issue, I was drawn to
the various religious freedom decisions, such as Epperson v. Arkansas.
Here's one summary (from http://www.natcenscied.org/courtdec.htm)

"Epperson v. Arkansas: In 1968, the United States Supreme court invalidated
an Arkansas statute that prohibited the teaching of evolution.
The Court held the statute unconstitutional on grounds that the First
Amendment to the U.S. Constitution does not permit a state to require
that teaching and learning must be tailored to the principles or
prohibitions of any particular religious sect or doctrine. (Epperson v.
Arkansas
(1968) 393 U.S. 97, 37 U.S. Law Week 4017, 89S. Ct. 266, 21 L. Ed 228) "

How much of this decision was based on the 14th Amendment, and how much on
other grounds?

I think I'll look into look into this, as it's an interesting issue of just
when the "Congress shall make no law" evolved into "states shall make no
laws."

--Tim May



There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

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In <v03102800b0257f3fd0ae@[207.167.93.63]>, on 08/23/97 
   at 11:21 PM, Tim May <tcmay@got.net> said:

>I think I'll look into look into this, as it's an interesting issue of
>just when the "Congress shall make no law" evolved into "states shall
>make no laws."

Hi,

I did some more research on 14th Amendments Test Cases. Seems that anyone
wishing to learn more about this should read the Opinion's from the
Slaughterhouse Case:

http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/historic/query=[Group+83+U!2ES!2E+36!3A]!28[level+Case+Citation!3A]!7C[group+citemenu!3A]!29/doc/{@1}/hit_headings/words=4/hits_only?firsthit

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- ---------------------------------------------------------------
William H. Geiger III  http://www.amaranth.com/~whgiii
Geiger Consulting    Cooking With Warp 4.0

Author of E-Secure - PGP Front End for MR/2 Ice
PGP & MR/2 the only way for secure e-mail.
OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html                        
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