From: Jim Burnes <jim.burnes@ssds.com>
Date: Wed, 14 Jan 1998 10:11:10 +0800
To: The Sheriff <cypherpunks@toad.com
Subject: Freedom Forum report (freedom of association)
In-Reply-To: <19971226.145900.12766.0.Lord_Buttmonkey@juno.com>
Message-ID: <34BC1B0C.FB57F941@ssds.com>
MIME-Version: 1.0
Content-Type: text/plain



The Sheriff wrote:
> 
> At 8:26 PM -0800 1/10/98, Bill Stewart wrote:
> >>>> Umm, no, freedom doesn't work like that.  If you open a *private*
> >>>> establishment, you have the right, according to the constitution, to
> >>>> deny *anyone* the right to enter or eat in your restraunt.
> >
> >I don't see freedom of association listed anywhere there;
> >you might construe it as a "taking" or something, but it'd be a stretch.
> >Also, there was a really appalling court case in the 1890s
> >(Plessey vs. Ferguson), in which the Supremes ruled that states
> >could require segregation with separate but equal accommodations;
> >it was somewhat overturned by Brown vs. Board of Education in 1954,
> >but the idea that the government can tell you how to run your business
> >is long established (after all, we'd need much smaller governments
> >if they couldn't be interfering in business.)
> 
> Firstly, something being long-established doesn't make it right.
> SO, let's look at it this way, regarding the freedom of association.

These arguments are all smoke and mirrors unless we figure out
where
authority lies (? ;-)

As far as I'm concerned freedom of association is implied by
freedom
of assembly.  To assemble in this context obviously means to
associate.
If it doesn't, then what the hell is it?  To come together in
order to
work things out?  Is that association?  In the context of
assembling
for commerce, commerce is just assembling and agreeing on the
terms
of free association.

The authority of a Supreme Court was challenged by Thomas
Jefferson, who
speculated that if such a court were the ultimate arbiter of
justice, then
a tyranny of the judiciary would follow.

So who ultimately judges?  I should think having a federal body 
judge the constitutional limitations of the federal government
is an
obvious conflict of interest.  In any case, anyone willing to
read
the constitution and do just a little bit of homework will find
out
that the constitution is a *limitation* of the powers of the
federal
government, not a broad grant.  This design of the Constitution
was
seriously undermined when Roosevelt stacked the Supreme Court in
order
to judge that Social (in)Security was constitutional.  In their
decision
they decided that the welfare clause was a broad grant of power
to
federal government.  This flies in the face of more than 100
years
of judicial readings of the constitution, not to mention logic.
If the federal government was given a broad grant of powers in
the Constitution, why did it outline only specific powers?
(In fact, exactly this argument was put forth when Madison(?)
was questioned on the intent of the welfare clause  -- didn't
the
Supreme Court justices, with their intellectual clout bother to
research the writing of the designers of said document?)

[little know fact: Earl Warren, noted Supreme Court "Justice"
was
the designer of the Japanese-American Prison camps in the US
during
WWII]

If the US Constitution is a contract with the people on the
scope and
nature of their government, then I at least want an outside
arbiter
of that contract.  All references to Spooner's "The Constitution
of No
Authority" aside, if it is not a contract then were living on
the other
side of the looking glass, Alice. 

Before someone starts spouting off on "our living
constitution"(TM) someone
please tell me why they didn't strike out the conflicting parts
of
the constitution when they "grew" it?  Something like
"amendments
number one, two, five, nine and ten should be amended to read
"unless we say otherwise".  Alterations of public law almost
always specify the
previous laws that are struck down.  In fact, if memory serves,
the repeal of prohibition specifically alters the amendment that
created it.

(It is left as an excercise to the reader to figure out why
prohibition
needed an amendment to the constitution while prohibition of
other
mind altering substances did not ;-)

Have a day.

Jim