yAdditional Notes (Our Fundamental Rights):
Legend: Ch=Chapter, P=Page, pr=Paragraph (numbered from top of page including incomplete first paragraph).
(Ch: I, P. 2, pr. 1): Were I rewriting this Introduction, I'd probably mention here that the most important source of unenumerated "fundamental rights" from a constitutional perspective is the (substantive) due process clause of the 14th Amendment, which invokes life, liberty and property rights. See the note below for Chapter 11.
(Ch: I, P. 2, pr. 4): In fact, only the first two Amendments specifically establish the right of an individual to act upon his own wishes (free speech, religious practice, assembly, association, bearing of arms). The nex six provisions of the Bill of Rights are predicated upon the assumption that the government (or some other party) has initiated some specific action against the individual.
The Constitution, before the Bill of Rights, actually did contain several “procedural” affirmative (or “original”) rights. These include
· The right to a writ of habeas corpus, preventing arbitrary imprisonment without charge, except in extreme public danger (Article 1, Section 9)
· Prohibition against bills of attainder, which are statutes that convict people of crimes (particularly capital or death-penalty crimes) without trial (Article I Section 9)
· the right to a trial by jury in criminal cases (the Bill of Rights added the protection for civil cases)
· prohibition on ex post facto laws
· guarantee that citizens of one state have privileges and immunities in other states (full faith and credit)
· prohibition on religious litmus tests for positions in national government
· prohibition against non-proportional capitation taxes, which would have made a federal income tax unconstitutional before the Sixteenth Amendment.
Libertarians often claim that many regulatory activities by federal government and many statutes are unconstitutional because they go beyond the enumerated powers, particularly in Article I Section 8. Nevertheless, this section stipulates that Congress has the power to make any and all laws necessary and proper to execute its other powers. This is called both the Sweeping Clause and the Necessary and Proper Clause. The phrase “promote the general welfare” appears in both the Preamble and in the first provision in the Enumerated Powers of Article I Section 8. Liberals have generally viewed social justice and even the redistribution of wealth (and programs like Social Security and Medicare) as justified by “general welfare.” Conservatives might view the draft this way (or as justified by the explicit power to raise and administer the military). These kinds of interpretations have tended to focus some judicial activism upon equal protection arguments tied to suspect class status.
As I develop in the related Bill of Rights 2 piece, it seems that a national popular consensus would be required for the courts to begin to narrow the powers allowed the federal government into a more libertarian direction. The people need to let the courts know that they want this.
President Bush (Nov. 2001) has signed an executive order authorizing secret military tribunal trials (“star chambers”) of foreign (non-citizens) suspected of terrorism. There is some justification under explicit war powers given to Congress and the Executive branch although where one draws the line with other constitutional provisions (like due process and trial by jury) is unclear.
The recent case where “Dear Abby” (Jeanne Phillips) called police after receiving a letter confessing (heterosexual) pedophilic fantasies (but not actions) and where the police raided the writer’s home and seized a computer with child pornography would, in my mind, raise the question of whether probable cause (associated with the Fourth Amendment) was satisfied (fantasies alone are not “threats”) before the police searched the home and computer. Also, the FBI (in early 2002) broke up a large child pornography operation based on closed e-groups on Yahoo, with a sting called “Operation Candyman.” Details are at http://www.fbi.gov/pressrel/candyman/candymanhome.htm The FBI and police tactics for tracking down child pornography customers can be quite draconian, including searching their hard drives for cached and deleted graphics files of minors engaging in sexual acts. Technically it is illegal to download (or even click on a link leading to) a sexual image of a minor, and doing so may result in conviction. The government is making a collective argument that (just as with drug users) customers are fueling the exploitation of minors. A chilling account of how an ex-Marine and policeman was snared by this operation is provided by Steve Silberman, “The United States of America b. Adam Vaughn,” Wired, Oct. 2002, p. 126. Indeed, to the extent that an open society offers unprecedented freedom, there is also unprecedented opportunity to fall to one foolish impulse.
(Ch 1, P. 9, pr. 2): One way to say this is, we could develop an informal, non-legally-binding national consensus that every praiseworthy adult ought to demonstrate that he or she can support someone besides himself or herself, starting in young adulthood and throughout adult life. This might be demonstrated by various combinations of family or parental responsibilities and other volunteer work. Our "cultural war" could really come to this!
Chapter 1: General:
I didn’t provide a separate chapter on the Right to Bear Arms (the Second
Amendment), but in the DC case
In June 2008 a
(Ch 2, P. 14, pr. 2) There is indeed enormous controversy among libertarians over abortion. Some maintain that there is a right not to be the victim of aggression, but no particular right to have one's life continued at expense to others. The enormous cost of caring for the aging (as we face an Alzheimer's explosion) is now smothered by Medicaid programs, but some day we may see children (especially those without dependents) being required to support aging parents as states find Medicaid payments for custodial care going out of control.
Moral arguments about the
right to life might support legislation, say, prohibiting health insurance
companies from screening consumers with genetic tests, as well as against
organ-selling (and baby selling, as with a well-publicized case in
There has been controversy about laws (“targeted enforcement,” which used to be used against gay bars) in some states to make it difficult for abortion providers to operated as “businesses,” and they could come under scrutiny according to the “undue burden” standard when, for example, applied to poor women who must travel or pay large fees.
(Ch, 2 general): Regarding the French drug RU486, the “morning after pill,” the FDA states “The Food and Drug Administration has approved mifepristone (trade name Mifeprex) for the termination of early pregnancy, defined as 49 days or less, counting from the beginning of the last menstrual period.” There has been talk that pressure could be put on a new president to try to have it made illegal. My own feeling is that the fertilized zygote is not a “person” with a right to life that outbalances a woman’s control of her own body, at least until the unborn is reasonably capable of self-awareness, which (as I said in DADT Chapter 6) might reasonably be expected after about 3 months, and Roe v. Wade is more liberal with the mother than even this. Persons who would want to ban RU486 are more likely to do so out of a symbolic deference to social standards regarding the consequences of sexual intercourse (and this eventually affects gays, too). There have also been suggestions that some morning-after pills are really contraceptives that work before fertilization and therefore do not present an abortion problem. (See Alan Dershowitz, Supreme Injustice, p. 201.)
(Ch. 2, general). In 1998, the then Missouri Senator John Ashcroft (President-elect Bush’s controversial appointment drafted an amendment giving the unborn the right to life immediately upon conception and fertilization, except for rare medical exceptions. It would have made many forms of contraception illegal. It went nowhere. Personally, I do favor letting the states (but not the federal government) ban late-term partial-birth abortions with rare medical exceptions. Public funds should not be used to pay for elective abortions, and parental notification and consent laws (if made at the state level) for minors having abortions seem proper to me.
(Ch. 2, general). For a thorough airing of all views on
the possibility of human cloning, see the feature story by Nancy Gibbs on p. 46
Peter Augustine Lawler, in “Libertarian Fantasy and Statist Reality” in the Nov/Dec 2002 Social Science and Modern Society, presents a bizarre “reversal” argument for cloning. “Libertarians believe that it is their right to defend natural inequality and diversity from government. They do not deny that I have not earned what I have been given by nature. But what I am is largely determined by what I do with what I have been given. What nature has given to me is mine. So libertarians believe that women may do what they please with their bodies.” (Okay, this is Uncle Remus in Disnay’e So Dear to my Heart. “It’s what you do with what you’ve got!” To be cynical, his passage reminds me of the bizarre strip rituals and after-hours bacchanals at gay discos where gay men discover what has been given, as if some new natural order could be determined!) Later he argues that libertarians will not be able, however, to deny men the right to control the genetic destinies of their own children once they are capable through science of doing on, because then men are in a position that this is part of their “nature”! This whole thing about inequities has always come down to this for me: people should not be able to hide from their own personal weaknesses (whether through redistribution of wealth or marriage), put people who are more fortunate should pay their dues and prove that they can provide for others besides themselves.
(Chapter 2, general):
(Chapter 2, general): There has been controversy over
stem-cell research, which the new Bush administration wants not to be
funded. There is the fear of a “slippery
slope” leading to cloning and “murder” for spare parts (as above). Personally, I do not have a problem with
creating individual cells or groups of cells to develop therapies for diabetes,
cancer, AIDS, and the like, as long as some defined limit (much below the level
of an organism) on what may be done is established. There is a paradox here: ultimate respect
for human life cuts both ways, as we may want a seamless definition of human life,
yet we want to save lives of children with diabetes, cystic fibrosis, and all
kinds of other diseases that would yield to gene therapy based on this
research. Conservative (and Mormon and pro-life) Senator Orin Hatch makes the
argument that normally embryos that would be used in this research are
otherwise discarded. A number of
celebrities (such as Michael J. Fox) have publicly supported limited stem cell
research, and there will be an interesting test if high-profile people and
corporate interests are able to sway public opinion away from a particular
religious or narrowly constructed “moral” interpretation of the issue. However,
private companies like the Jones Institute in Norfolk, Virginia are now
creating stem cells in vitro for research only (there is a similar effort in
Worcester, Mass.) , and this brings up the debate as to whether clumps of stem
cells really are “embryos” for purposes of moral debate (in comparison to
abortion and cloning). On
(Chapter 2, general): The Terri Schiavo
(Ch. 3, P. 15, pr. 4) As NBC
"Dateline" reported on
Chapter 3, general: The slavery and segregation experiences in our
history do add a level of argumentation. In
Chapter 3, General: On
Chapter 3, General: David France, “Slavery’s New Face,” Newsweek,
Chapter 3, General: The PBS series
“The Irish in the
Chapter 3. General: In Vermont (ironically,
perhaps, considering its progressive same-sex civil union provision), state
representative Fred Maslack has introduced a bill
requiring all non-gun-owners to register with the state and for male
non-gun-owners of military age to pay a $500 registration fee! A taste of
General. I should have also mentioned
the 13th Amendment in this Chapter (it is listed in Chapter 11),
adopted in December 1865 to abolish slavery in the
Chapter 3. General. On
Chapter 3. General. The 13th
Amendment and the right to be free of involuntary servitude is given as the
basis for lawsuits by some Army reservists who were called back to serve in
Chapter 3: General. U.S. History students in high school learn that
impressments of Americans on ships by British ships was an indirect cause of
the War of 1812. Impressment is a form of involuntary
servitude. The History Channel ran a
documentary “The War of 1812” on
Chapter 3: General. The 1950 World Book Encyclopedia article on slavery starts with this amazing sentence: “Slavery was actually a forward step in the march toward civilization. For many hundreds of years, conquerors simply killed their enemies. The idea of using captive men and women to do the rough work in a community, instead of killing them, was therefore a humane reform.” Would an article start like this today? Even Wikipedia discusses it in pragmatic economic terms: http://en.wikipedia.org/wiki/Slavery
Chapter 3: General: Here is an
important relatively new concept: Back
door draft (or conscription) -- the practice of involuntarily retaining
persons in the Armed Forces because of an ongoing conflict when these persons
originally volunteered. It is controversial whether this would amount to the
moral equivalent of "involuntary servitude." The practice has
occurred with the war in
Chapter 3: General.
Chapter 3: General: A district attorney in
(Ch.4, P. 19, pr. 2) In 1833, Judge Joseph Story, in writing about the 3rd, or "Quartering" Amendment, had noted that the the 3rd Amendment implies that a "man's home is his castle; and that this was the first time (about 165 years ago) that a Justice referred to a right to privacy from the Bill of Rights.
(Ch. 4. P. 20, pr. 3) Certainly, unplanned pregnancies among unmarried women create a cost that "society" pays for and arguably makes a lot of heterosexual private activity society's "business" but then questions come up such as, holding fathers responsible, welfare reform, voluntary assistance arrangements.
(Ch. 4, P. 20, after pr. 5) Overuse of antibiotics and development of resistance among bacteria provides another menacing example of where private behaviors may eventually jeopardize public health.
(Ch. 4, P. 23, para. 4). Eskridge, in Gaylaw (Harvard University Press, 1999) points out that statesodomy laws punishing consensual acts in private really did not come into being until after World War II. By the late 1950's, some states were aggressively chasing homosexuals out of the closet by closing down gay bars (often invoking police payoffs) with laws forbidding serving alcohol to or allowing the congregation of "known homosexuals."
(Ch. 4. P. 29, after p. 3) If one raises choice of intimate partner to the level of a "fundamental right" and wants to stay within libertarianism, one then is forced to balance property rights (as fundamental) with the "right" to be free from discrimination because of intimate partner. If one wants to protect expression of sexual orientation in law under this philosophy (after deciding that intimate expression is more "important" than property when there is this "conflict of interest"), then there would be no exceptions, not even for religious organizations or for individual landlords. Compare this to an analysis of "religion" as a "fundamental right" (really, "exalted right") that must be traded off against property rights.
(Ch. 4. P. 30, after pr. 2). The aggressive
behavior of e-commerce vendors (as reported on CBS "60 Minutes" on
(Ch. 4: General): The First Amendment specifically mentions Freedom of Assembly and Petition but not freedom of association. The Supreme Court has recognized freedom of association for political purposes (“expressive association” and this can be difficult to separate from social association sometimes), on the theory that politics generally requires collective action; but an 1989 decision held that it did not apply to social association (a concept that could be important in the James Dale v. Boys Scouts case if it goes to the Supreme Court.)
(Ch. 4: General): Of course, we can discuss “the choice of significant other” in the context of miscegenation (Loving v. Va., 1967) one the one hand, and polygamy on the other, where the arguments will be especially doubled-edge.
(Ch. 4: General) Jeffrey Rosen has written a book, The Unwanted Gaze, about the implications of cyberspace for personal privacy. “Privacy keeps you from being judged out of context, from being judged on the basis of information rather than knowledge.” While the usual concerns about privacy involve such possibilities as tracking the sites one visits, there are more subtle ones. If someone becomes well known because of a controversial web site, will people who know the person feel that they are being singled out even if they are not specifically mentioned?
A lot is being written now about the tracking of consumer habit on the web, as an invasion of privacy. For example, the October 2000 issue of Yahoo! Internet Life features articles “Nowhere to Hide” by Robert Scheer, and “Global Eavesdroppers” by Jeff Howe. There will be debates in Congress as to the appropriate public policy”: an “opt in,” or an “opt out” paradigm. Privacy experts prefer “opt in,” where the customer gives explicit permission for his profile to be shared.
(Ch. 4: General) A recent threat to privacy is a product called “Carnivore,” which the FBI has developed to eavesdrop on emails and electronic transactions, looking for signs of terrorist activity, drug dealing, and the threat. This hardly sounds more constitutional than unauthorized wiretapping on telephone or interception of mail.
(Ch. 4: General). It is useful to note the distinction between a right to “procedural privacy” and a “right to private choices,” as delineated by Amitai Etzioni in Chapter 6, “A Contemporary Conception of Privacy,” in The Limits of Privacy (New York: Basic Books, 1999). The notion privacy, apart from property—the “right to be left alone”—first appeared in an essay “The Right to Privacy” in the Harvard Law Review in 1890 by Samuel Warren and Louis Brandeis.
Chapter 4: General. The
Boston Globe, on
Chapter 4: General. There are
effective protections of personal privacy in credit history and financial
records in federal law, compared to what is available from federal law to protect
privacy of medical records. State laws
are generally comprehensive, but the federal government did not address the
issue until the Health Insurance Portability Act (HIPA) of 1996, which had been
designed to deal with the issues of pre-existing conditions in
employer-sponsored health insurance. HIPA gave
Chapter 4: General. On
Chapter 4: General. There is a serious effort in Ohio (as of late 2006) to develop a civil sex offender registry, and in other states (such as Virginia) vigilante groups have pursued and identified suspected but not convicted sex offenders. Here is my blog entry: http://billonmajorissues.blogspot.com/2006/09/civil-registry-proposed-in-ohio-ex.html
For a chart describing privacy law with respect to HIV in Minnesota (probably representative of most states) see the publication “The Providers’ Guide to HIV Confidentiality and Disclosure in Minnesota,” by Lynn M. Mickelson, Esq. And Vanessa Hansen, published by and available from the Minnesota AIDS Project. Except for individual life insurance applications the protections are considerable. An employer may not require an HIV test unless HIV sero-negativity were job-related (see note 109 in DADT Chapter 5).
Chapter 4: General
John Stossel reported on
Chapter 4: General: And now
(June 2001) the state of Oklahoma wants to do
Chapter 4: General: For Electronic Frontier Foundation’s analysis of the 2001 USA Patriot Act for anti-terrorism visit http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_patriot_analysis.html My essay is at http://www.doaskdotell.com/content/epatriot.htm
Chapter 4 General: See John F. Kelly, The Washington Post,
Chapter 4, General: Of course, if you propose the right to choose a consenting adult significant other without state prejudice as a “fundamental right,” you can run into the socially conservative objection that the implications of everyone making these choices legally would be letting less competitive people out into the cold. See the essay on naricissism.
Chapter 4, General: The military gay ban is partly justified by the idea that straight soldiers have a right to “privacy” in the barracks with respect to persons who might be sexually interested in them. There are other employment situations where the “privacy” of someone who cannot give consent could be compromised. See Chapter 4 notes at the runnote file.
Chapter 4, General: Historians claim that ancient Greek and Roman (Latin) societies did not have words for the concept of “privacy.”
4. General: Chris Crain, Executive Editor of The Washington Blade, has an
excellent editorial in the
“Does he believe that some personal choices are so private, and so central to an individual’s liberty, that the majority cannot tread on them for no good reason other than they believe it is immoral?
“Before I came out, I never understood just how important that question can be for many Americans, whether they’re gay or women or simply choose to live their lives in a way disapproved of by the majority.
“John Roberts, who is married with kids, never got that comeuppance. He has lived his entire life as part of the majority, and my strong suspicion is that he sees no threat to freedom from the majority weighing in on those personal choices, and he sees no words in the Constitution giving courts the power to stop it.”
Chapter 4, General. Jeffrey Rosen, “Supreme Futurology, Roberts v.
the Future,” The New York Times Magazine,
Chapter 4. General. Columnist
George Will has pointed out the difference between “privacy” and “personal
autonomy,” the latter concept of which is a foundation of classical liberalism
but, he says, not necessarily guaranteed as a fundamental right by the 14th
Amendment or otherwise in the Constitution. (The Washington Post,
(Ch. 5, p. 31, pr. 5) We shouldn't take our right to Internet access
"for granted." Orginally, the Internet was
underwritten by the government (through the National Science Foundation) to
assist research and military institutions. By about 1992, commercial interests
had convinced government that they would fund its development if allowed to use
it. In short order, the Internet became a powerful tool for personal soap-boxes
like mine. While commercial enterprises wanted it, what the Internet has done
is to take away some of the power of the traditional owners of the commercial
press and give it back, indeed, to the "people." Besides censorship
and other intellectual property issues (below), growth in personal use of the
Internet faces challenges of saturation, to the point that phone companies
already want to start excluding it from unlimited message unit service.
However, Rep. John Shimkus R-Ill, Member of the House Commerce,
Telecommunications, Trade and Consumer Protection Subcomittee
pooh-poohs this "urban legend" and reassures us that the Internet Tax
Freedom Act protects web users from "access charges" until 2001 (see USA
(Ch. 5, p. 32, pr. 3) This is a place to add another wrinkle to the “free speech” arguments against “Don’t Ask, Don’t Tell.” One could propose that a gay servicemember ought to have the right to “tell” in an abstract fashion so that he(/she) does not have to misrepresent himself to others. But one would not necessarily have the right to attract public attention this way, or, especially, to make the details of one sexual tastes known, as these would be particularly distracting in the military environment. But this could have been handled by the “Code of Conduct” as in http://www.doaskdotell.com/content/whitehou.htm
(Ch. 5, p. 32, pr. 5) Is writing as such a profession (in the sense that one will write about what is assigned for income)? It certainly is so for journalists, screenwriters and many freelancers. There is a National Writer's Union. (The site is http://www.nwu.org/, it indicates that it welcomes freelancers and it does appear that this organization will allow writers who do not pay their bills with their writing to become members.) And some friends have criticized me for writing and publishing conspicuously while I'm still working (with a "cushy" income). Is one supposed to go through the "starving artist" phase to establish oneself as a writer? People who write on someone else's dime will always be constricted in what they may say (the "Cradle will Rock" problem) and therefore the public needs the input from people who write but not immediately for a living, to get the whole story. But there can be real conflict over public attention (and "publicity rights") here.
Incidentally, NWU officially took a stand with a resolution in February 2003 opposing the (then upcoming) war in Iraq. I answered an email to me from them on this critically. An organization representing writers should not take a position on a complicated political issue and imply that writers support that position, although it would be all right for members within the organization to form their own ad hoc coalition to express that view collectively. Of course, you can say, what if what you are opposing is an obvious “evil” (say, neo-Nazism)?
Congressman John Conyers has introduced legislation to grant freelance authors an exemption from anti-trust legislation. NWU has advocated that writers stand firm on not relinquishing rights for electronic replication and obtain a minimum of $1 for paid contributions. There would be an issue if a new writer submitted a large but original piece to a visible periodical and charged less in order to “get in.”
See intelct.htm for more expansion on this (as, for example on trademark, where an "assumed name" for publishing could conceivably infringe upon an undected trademark).
(Ch. 5, p. 35, pr. 2). One major duplicating chain was sued and lost a judgment for helping assemble "college outline guide" from plagiarized materials. A printer or duplicating service would not be in a position to know if there were misuse of "fair use," say, in quotations by an author, but requiring identification and reasonable proof of ownership (such as a Library of Congress copyright certificate) would certain sound like a prudent practice and provide reasonable defense.
(Ch. 5, p. 36, after pr. 1) Moral rights, widely recognized in Europe and less so in the United States, prevent unauthorized misrepresentation or adaptations of an author's work. Respect for moral rights does not usually interfere with free speech. An author's wish that he not be mentioned in a publication with some slant he finds objectionable would not violate his "moral rights."
(Ch. 5. P. 37, pr. 1). To follow on an
earlier note about off-the-job Internet activities, see DADT Chapter 5 Note
174b for cases where employees were fired for off-the-job Internet pornography.
Employers might fear that the "pervasiveness" of (even) off-the-job
Internet or even radio talk show "hate speech" or pornography could
make them liable for "hostile workplace" claims from offended
coworkers and customers. This extends upon Jonathan Rauch's essay on the
tension between "hostile workplace" and free speech in "Officers
and Gentlemen: How Workplace Harassment Rules Have Outlawed Prejudice,
Destroyed Free Speech and Trashed the Constitution," The New Republic,
June 23, 1997. Companies generally feel that they have their hands full
preventing abusive behavior (and misuse of company computers) within the
workplace, and (unlike the military!) they generally do not want to restrict
employee "off duty" freedom any more than necessary in practical
terms; but given the topology of the Internet they are bound to start
considering regulating (in personnel manuals) expressive behaviors off the job,
too. (Companies might also become concerned about "publicity rights"
With regard to anonymous postings, Georgia tried (in 1999) to pass a law
making it illegal to post anonymously on the Internet, or even to use a
fictitious screen name as on
(Ch. 5. P. 37, pr. 2) Actually, even the
Not all of the Communications Decency Act was overturned. A
provision that limited the exposure of
(Ch. 5, p. 38, pr. 2) The relevance of the Opinion Rule in libel cases could be compromised if the primary motive of the writer were commercial.
(Ch. 5, p. 38, pr. 3) Congress has considered making it a crime (at
least in pictures) to suggest that a minor is engaging in sexual activity even
if an adult is used or the image is generated by computer. Remember the film The
Tin Drum, which a district attorney in
The article “The Web’s Dark Secret,” Newsweek,
The Child Online Protection Act is already being challenged in federal court. There is controversy as to whether the Act regulates subject matter, or just specific ways of expressing adult subject matter. There is also controversy over whether the limitation of the act to "commercial" content providers protects free speech in practice, and whether there is sufficient protection from prosecution for internet web hosts who may "solicit" content providers. Plaintiffs claim that adult identification at login, at least in a way that would not hinder efficient web use of, say, discussion groups, is not yet economically feasible and that even if feasible, it would hinder communication of ideas among adults.. There already exist browser software that can interpret a rating system (similar to movies), so that content providers would then rate their sites appropriately, and that parents, when buying personal computers and providing Internet accounts for their own children, could reasonably be expected to set up these accounts with appropriate rating controls. Then adults would face no interference. But this isn't good enough for the politicians. (See the link above, or http://www.doaskdotell.com/special/copasup.htm for the 2004 Supreme Court ruling.)
COPA, in fact, provokes some interesting questions. Do commercial providers have less valid First Amendment claims than do individuals (depending perhaps upon their credibility and overall pattern of conduct)? Do commercial providers have a right to enrich their business opportunities by displaying free "adult material" (not just pornography) that conceivably can harm some children? (They didn't need the Internet 10 years ago for this!) Does government have a compelling interest in providing some "protection" to children from adult Internet content regardless of whether parents take the initiative to install filtering or rating controls, or is parental responsibility a valid component of the "least restrictive means" available calculation? OK, let me play devil's advocate! The courts will!
I want to emphasize one point: I run a "tiny" publishing operation which does not now make a profit on its own, and with low volume; nevertheless, commercial format has a practical effect of giving my Internet writings much more weight and credibility. Of course, there is a possibility of future financial gains (publishing, television, or film) from this. So, if my strategy for reaching this goal means placing arguably adult materials in a public space where (particularly, younger) children may "accidentally" find them, have I done something wrong? Perhaps I don't have (in due process terms) a "fundamental right" to do this (as a commercial augmentation of individual free speech, especially when one considers that the Supreme Court does allow more regulation of commercial "speech" for consumer protection, rights of publicity, use of public airwaves, etc.). However, if I were not able to do so, the availability of certain kinds of political argumentation to the public could be lost, and this is a genuine First Amendment concern (the ability of adults to "receive" speech). The bottom line is that the government must use the least restrictive means available to keep "adult" materials away from children and that the government must consider whether voluntary measures can work. An important observation is that anyone can become a “publisher,” reaching the entire planet with an inexpensive .com domain. See my materials on COPA at this site.
I want to emphasize how strong the First Amendment (free speech as an “explicit right”) is in the United States, compared even to western European countries. (Germany, for example, doesn’t allow any pro-Nazi speech, and Britain allows very weak defenses to libel.) For people who believe in a public policy of "kids first," it may be surprising that the courts bend over backwards to make sure that any statutory restrictions on constitutionally protected exchange among adult speakers must meet a "least restrictive means feasible" test.
There is also a Children’s Internet Protection Act (CIPA) effective 2001,
now being challenged in court, and it would require schools and libraries
getting federal funds to install filters for pornography and adult material.
This is less draconian than
There is also a Children’s Online Privacy Protection Act (COPPA, 1998), associated with COPA, and this merely prohibits web sites from collection information it knows to be children under 13 without consent of parents. This has not been challenged.
In July 2000, Kenneth Paulsen, of the First Amendment Center, presented a
survey in which around 50% of American actually favored laws forbidding public speech
defamatory to any religious group (as well as to any race). The Anne Frank House Museum in Amsterdam
offers a video with comparative audience votes on several free speech
questions, where the danger that speech aimed at a particular group may encourage
violence or at least discrimination by others. (In particular, the activities of white supremacy groups with respect to the Byrd
murder case in
This study was repeated with about 1000 adults by the First Amendment Center in June 2001. According to a release by the National Libertarian Party:
‘46% said the press in America has "too much freedom to do what it wants." By contrast, only 36% think there is "too much government censorship."
71% think it is somewhat or very important for the government "to hold the media in check."
39% agree "the First Amendment goes too far in the rights it guarantees." That's up dramatically from just 22% who held that opinion last year.
* 64% disagreed that "people should be allowed to say things in public that might be offensive to racial groups," with 36% saying there should be laws against such speech.’
(Ch. 5, P. 40, pr. 4). In fact, colonial-era English law required a "license to publish"; England in earlier times did not protect free speech and the free press; the 1689 Bill of Rights made no mention of it. The invention of the printing press was indeed dangerous to established interests who saw the easy availability of information as politically and socially destabilizing, as some people see the Internet today.
(Ch. 5: General): There have been recent (late 1999) reports of a school district in Washington State which subjected teaching job applicants to an "attitudes" test to make sure they would fit in with a diversity program. Since this is applied by a public agency, is this a violation of freedom of speech?
(Ch. 5: General):
(Ch. 5: General): Under "natural rights" philosophy, there is a theory that free speech is subordinate to property rights. See essay by Chris Mayer (follow links).
(Ch. 5: General): The recent outbreak of "denial of service
attacks," (especially "distributed denial of service attacks,")
could eventually make smaller
(Ch. 5: General): There has been a lawsuit attempting to shut down a Teacher Review website, originally created by Ryan Lathouwers to rate teachers at San Francisco City College. The plaintiff, Curzon Brown, maintains that the site’s reviews defames teachers on the site and presumably hampers their ability to conduct courses and grade students as they deem necessary. Does the First Amendment prohibit public criticism of those who need to maintain their position of judgmental discretion over others? There have been similar cases in public school systems with students’ websites created with their own resources.
(Ch.5: General): In the
(Ch. 5: General): HR 2987, the Methamphetamine Anti-Proliferation
Act, would give the FBI the authority to order web hosting services to shut
down without warning to domain owners domains with certain information about
drug manufacture and use. According to
In similar “chilling effect” spirit, the 1998 Digital Millennium Copyright Act prohibits not only with tampering with technical anti-copyright-infringement schemes implemented by record companies or by e-publishers but also with publishing information (as on a web site) on how to do it. Record companies and movie studios are under no obligation to exempt “fair use” copying in these schemes. So, if I wanted to make a broadband documentary movie about boy bands and perform (without permission) just a few measures from an “N Sync” song to demonstrate some technical point about rhythm, I’d have to perform it myself.
(Ch,, 5, General): The Boston
There is another case, in which Planned Parenthood won a judgment against a site called the “Nuremberg Files” which it maintains was a “hit list” against abortion providers. The case is under appeal in the 9th Circuit (as of September 2000) and the appeals court has suggested mediation. The “threat of imminent lawless action” doctrine did figure in to the district court’s decision (with instructions to the jury to consider violence against abortion providers in the past).
The federal government is charging an Internet essayist Jim Bell with “interstate stalking” for passing information on the whereabouts of government agents with the intention of endangering them, and it has used his bizarre Internet essay “Assassination Politics,” which describes a wager system based on the deaths of government agents, as evidence of intent to incite lawless action.
There has also been criticism of video games and other miscellaneous out-of-context stunts or violent incidents which may be imitated by minors despite warnings by exhibitors. For example, a teenager tried to imitate a self-immolation stunt depicted on a popular music network and was gravely burned. Where such media are a “proximal cause” of imitative violence or self-destruction by minors (in conjunction with a First Amendment argument) will surely be litigated soon.
(Chapter 5: General): A major question remains is whether the government can impose different standards for open speech on the “pervasive” Internet compared to print. Maybe, maybe not.
(Chapter 5: General): Let us purport that there is a “don’t ask don’t tell” mentality in business, where people are supposed to pretend publicly that they are absolutely loyal first and foremost to their profession and to their organization. But organizations and corporations are never in a position to speak the complete truth; only individuals are. What hath our president started with his duplicity?
(Chapter 5: General): An interesting comparison to the free speech
issues is posed by the Napster controversy, launched by a software package
written in 6 days by teenage Shawn Fanning (Time,
Subsequent events would lead eventually to the bankruptcy and shutdown of Naptster.
A related controversy concerns Morpheus, a file-sharing service that has no index or central registry of what is being shared. Yet 29 music publishers, in late 2001, sued Morpheus for allegedly facilitating copyright infringement. A legal question may develop over whether the legal uses of such file-sharing (such as publishing one’s own music or work in a “choir” community or without needing one’s own web server for broadband hosting) outweigh the practical likelihood of “average” use to avoid paying for music and other materials. Yet the lawsuit could be construed also as an attempt by the music and entertainment industry to put a brake on competition from small self-publishers. See comment on article by Lardner elsewhere on this page.
Chapter 5: General. Here’s a fictitious Express/Proof of Life scenario: an American runs a controversial Internet domain with adult content that is constitutionally protected free speech in this country. He gets arrested in an Islamic country for trafficking “pornography” where his domain is viewed when he travels there on business. As after Truman Bradkey, could it happen?
Chapter 5: General. On
Chapter 5 (General) On
Chapter 5 (General): Attempts by Congress to enhance copyright protection on the Internet have led to some bizarre problems, such as the arrest of Dmitri Sklyarov for writing programs to circumvent software locking on Adobe product. Sklyarov had written these in Russia for an employer, and was arrested when he came to Las Vegas to discuss his decryption technique. The law at issue is the DMCA, or Digital Millenniun Copyright Act of 1998. The most controversial section of this act is the “anti-circumvention provision,” which makes it a crime to break a software or content publisher’s encryption method. Arguably, this goes against the spirit of pre-Internet copyright law, because it would be a crime even for the purposes of purportedly “fair use.” The DMCA also compromises “first sale” and “limited time” concepts well established in copyright law, at least for digital works.
Peter Coffee weighs in on the DMCA issue with an articule in eWEEK Technology Editor (Ziff Davis) in which he maintains that the DCMA could eventually mean government licensing of computer professionals. See “Busted for Developing without a License” at http://www.iccp.org/iccpnew/BUSTED%20FOR%20DEVELOPING%20WITHOUT%20A%20LICENSE.htm
However the DMCA exempts
However, in January 2003 there was a new brouhaha when Judge John Bates
ruled that Verizon could be required to identify a customer who “illegally”
transferred music files to other friends. There has been considerable criticism
that this ruling requires
The federal copyright law as a whole falls within the explicit powers given to Congress in Article I Section 8 (libertarians, note!). However the DMCA arguably gives the content owner the possibility of “protecting” facts, which are not supposed to be copyrightable. The DMA creates a shadowy concept of “para-copyright” that could be easily manipulated by content publishers or software providers for anti-competitive purposes.
The SSSCA (Security Systems Standards and Certification Act) goes even
further, as proposed it would require manufacturers of digital devices and
maybe software and even
James Lardner provides an analysis of all this, “Holly Wood versus
High-Tech” in Business 2.0, May 2002.
The by-lines are “Hollywood says Silicon Valley promotes piracy. Andy Grove and
others say that’s crazy. The battle over digital theft is getting ugly and the
stakes are higher than you think. Disnye’s Michael
Eisner and others say Hollywood will defend all its intellectual property at
all costs. Silicon Valley eminences like Andy Grove say those are fighting
words—if it means trampling consumers rights and squashing innovation.” The
article maintains that even ability of PC manufacturers to continue offering CD
Electronic Frontier Foundation weighed in on all of this with a press release:
“As Hollywood's Broadcast Protection
Discussion Group (BPDG) rushes to establish a laundry-list of mandatory and
forbidden "features" for digital television devices -- including PCs
-- one company has called on Congress to expose the process to the "sunlight
of government." Philips North America
”The BPDG mandate is meant to be the kinder, gentler face of Hollywood's bid to win a veto over new technology, a "consensus" involving all interested parties (except, of course, the public, the press and the small entrepreneurial companies whose technology would be banned under a BPDG regime). While the whole world has been blasting Senator Hollings' Consumer Broadband and Digital Television Promotion Act (CBDTPA), the secretive BPDG group have been establishing a standard that bans free and open source television software and leaves a veto on new technologies in the hands of the studios.
”The end result will be a marketplace full of devices with components that have been effectively specified by Hollywood; a world where "tamper-friendly" software licensed under free/open-source licenses cannot interact with commodity PC components; a world startlingly like the one promised by the CBDTPA.
”Mr. Blanford's brave stand marks the first public indication that the BPDG process is anything but a consensus. As Philips stands up to Hollywood's self-centered assertion that only they are qualified to assess the value of new technology, we need to recognize the risks Philips is taking on our behalf.”
and provided a letter to be sent to Congress,
Then Electronic Frontier Foundation (http://www.eff.org/) provided this additional warning about proposed new legislation in May 2000
Imagine a world where all digital media technology is controlled by Congress and Hollywood. Senator Ernest Hollings and a powerful group of
Hollywood entertainment interests are pushing Congress to pass an anti-consumer bill called the Consumer Broadband and Digital Television
Promotion Act (CBDTPA) to bring just such a world into existence. The CBDTPA promises a world where your ability to use the digital media that
you buy may be severely limited. Legal freedoms that you have long enjoyed could drastically change. If CBDTPA passes, you may not be able
* Play your CDs on your desktop computer
* Create legal copies or mp3s of the music that you own to play in
your car, or listen to while you exercise
* Create mix-CDs of music you've paid for
This is not the way copyright law is supposed to work. The Betamax decision, handed down by the Supreme Court in 1984, established the
principle of "substantial non-infringing uses" - if a technology (such as a
home viewing, the fact that the technology can also be used for copyright infringement does not make the technology illegal. The Betamax
principle allows technologists to create tools that can be used for good, even if they can be used in other ways. The CBDTPA breaks the
delicate balance reached between copyright holders and those making fair uses of copyrighted works. This bill, and other attempts by Hollywood to
curtail your rights, must be stopped.
What YOU Can Do Now: This is YOUR chance to voice your opposition to
CBDTPA. - Subscribe to the new EFF Action Center and send your member of
Congress an email, letter or fax. You can take action by going to:
Then, in October 2003 the
Chapter 5, General: There are also security implications from the explosion of Net publishing and discussion on the Web. In August, 2001 there were proposals to license PC users, as a Wired News article by Michelle Delio, at http://www.wired.com/news/politics/0,1283,46096,00.html. I go into this more at http://www.doaskdotell.com/content/hpdadt/speech.htm .
Chapter 5, General: On
Chapter 5, General: After the
Chapter 5, General: China, in early 2002, started holding
Chapter 5, General: For more on how intellectual property law concepts interact with freedom of speech concerns, especially in the age of the Internet, see the doaskdotell discussion on intellectual property law.
Chapter 5: General
In early 2002 the Council of Europe circulated a treaty that
would require European Union countries to outlaw Internet hate speech and to
Chapter 5: General. Feb. 2002, Electronic Frontier Foundation reports a new website http://www.chillingeffects.org/ that will publicize “cease and desist” letters from companies or media outlets to individual website owners.
Chapter 5: General: On
Chapter 5: Housing activist Paul Trummel was jailed for disobeying a court order not to publish accusations on his own web site; another party had gotten gotten a court to issue an injunction as an “anti-harassment” order (not the same as invasion of privacy or libel). The court ruling seemed to indicate that sometimes individuals do not have the same right to publish as does the established press. Don Monkerud covered this case in the Summer 2002 American Writer (from the National Writers Union) and comments “Such rights are not dependent upon whether a person is employed as a journalist. Every citizen is entitled to publih—it’s a basic freedom of speech issue.” That is, the “right to publish” should be viewed as a fundamental right. For more, see http://contracabal.net/806-05.html
Chapter 5: There have been recent alarmist claims that consolidation in
the cable and
Following up on
this is the Wired News story by Michelle Delio,
Chapter 5 (General): See John Markoff , “Terror-Tracking gency Weighted,
But Discarded, Plan for Reconfiguring the Internet” New York Times,
Chapter 5: The ACLU is also litigating a case in which a researcher claims fair use rights to see what sites are blocked by Internet filter program N2H2.
Chapter 5: The ACLU is challenging a subpoena by 2TheMart to identify anonymous speakers from InfoSpace, even those who did not criticize the company. It is also challenging, in Mevlin v. Doe, an attempt by Pennsylvania judge to quash an anonymous critic.
Chapter 5 (General): Could someone who operates a politically or socially controversial website from this country be arrested in another country (such as an Islamic country) where such speech is forbidden if he or she set foot in that country?
Chapter 5 (General): An example of a frivolous lawsuit intended to suppress free speech was one filed in 1998 by Texas cattlemen against Oprah Winfrey and Howard Lyman, when Oprah had Lyman on her show to present the mad cow risks of inter-cattle feeding (now banned). Here is one reference: http://news.bbc.co.uk/1/hi/world/48964.stm The Opinion Rule may have been part of Oprah’s successful defense. Another lawsuit (trademark) against her in 2001 dealt with her use of the letter “O” to identify her magazine. Rosie O’Donnell had a fight with her magazine publishers when she felt that her publishers misrepresented her values.
Chapter 5. The Supreme Court is also reviewing a lawsuit against Nike shoes (filed by labor activist Marc Kasky) for allegedly misleading claims that its overseas workers labored in safe conditions with living wages and benefits. The question will be, to what extent does commercial (as well as political) speech get First Amendment latitude (under the Opinion rule) for potentially misleading claims. California law allows suits by citizens for false advertising claims. Nike settled in September 2003.
5 (General). On
Or (without all footnotes) at http://www.doaskdotell.com/content/illtele.htm
A federal judge in
Oklahoma ruled on
In early 2004 there was a lawsuit filed by the family of the victims of a murder in Alabama against a web designer after a death row inmate provided the designer material about the murders to the designer, apparently under the nose of prison officials. This will be a first amendment claim, as to whether the line is crossed, particularly when there is a commercial gain from a past crime. Claims include intentional infliction of emotional distress, libel, invasion of privacy, and obscenity. Apparently the contents are very graphic.
5, General. Joshua Kurlantzick provides an interest
perspective on the Internet in less free countries in “Dictatorship.com. The Web Won’t Topple Tyranny,” The New
Chapter 5, General (and Chap 9): The McCain-Feingold law regarding campaign fiancé reform, with limits on soft money used to pay for political ads that mention candidates, has interesting first amendment (and expressive association) problems. Here is an interesting discussion from Cato, John Samples, “The Beginning of the End of McCain-Feingold.”
Also a member of the queerpolitics listserver writes:
“The FEC has proposed imposing strict fundraising, reporting and other requirements on nonprofits that express an opinion that could be viewed as promoting, supporting, attacking, or opposing a federal candidate or the policy position of a candidate. If adopted, the effect of these rules would be to muzzle virtually all nonprofit advocacy groups – in the middle of an election year, no less.” Here is the People for the American Way link:
Chapter 5 (General): “Swede’s Sermon on Gays: Bigotry or Free Speech? Pastor Challenges Hate-Law Restrictions”,
Keith B. Richburg and Allan Cooperman, The Washington Post,
Jan. 29, 2003, discusses the conviction (and 30 day jail term) of
Rev. Ake Green, a Pentacostal minister in Borgholm, Sweden, for violating Sweden’s hate-speech laws in a sermon in which he
declared that homosexuality [to be a “cancer” that] “can infect and destroy the whole society.” European countries have hate-
speech laws banning speech directed at groups (“blood libel”) and in 2002
added gays and lesbians to that list of groups. Sweden
“Prosecutors regularly indict people for statements that would go unchallenged in the United States.” Rev. Rob Schenck, of the
Washington DC based National Clergy Council, expressed a fear of similar laws in this country. Kevin Cathcart, of Lamda Legal
Defense and Education Fund, indicated that religious conservatives in this country are trying to twist the Green case.
Chapter 5: (General) A recent study of high school students shows a an appalling lack of understanding of or valuation of the First Amendment. The study was commissioned by the James S. and John L. Knight Foundation.
“Among its findings:
• Nearly three-fourths of high school students either do not know how they feel about the First Amendment or admit they take it for granted.
• Seventy-five percent erroneously think flag burning is illegal.
• Half believe the government can censor the Internet.
• More than a third think the First Amendment goes too far in the rights it guarantees.”
July 13, 2005: Ali Al-Timimi was sentenced to life in prison in Alexandria VA for soliciting others to go to Afghanistan to support jihad, and for raising money for terrorist causes. Some of his offenses took place a few days after 9/11/2001. This case has raised serious First Amendment questions. Jerry Markton, “Muslim Lecturer Sentenced to Life: Followers Trained for Armed Jihad” The Washington Post, July 14, 2005. “The heart of the government's evidence against Timimi was a meeting he attended in Fairfax on Sept. 16, 2001, five days after the attacks on the Pentagon and World Trade Center. Timimi told his followers that "the time had come for them to go abroad and join the mujaheddin engaged in violent jihad in Afghanistan," according to court papers.” Some persons played paintball as part of training exercises.
Chapter 5: On
Sept. 29, 2005 ABC“World News Tonight” reported that Bill Bennett (on a call to a syndicated radio talk show) speculated about the hypothetical possibility that all black children could be aborted to reduce the crime rate. Many were offended by his statement, but Meese insisted it was rhetorical, Socratic and subjunctive (a kind of “null hypothesis”): to show that there are no absolutes in desirable policy goals, and that desirable end results can be achieved by immoral means. Meese insists he had the right to say this under the First Amendment. He did.
Chapter 5: Europe continues to have fewer free speech protections. Mohamed Kamal Mustafa, imam of a mosque in Fuengirola, authored a book “Women in Islam” in which he allegedly described abusive practices toward women. A Spanish judge found him guilty of inciting violence against women. In the US, there must be the “imminent threat of lawless action” for such a conviction based on a book or website. However, American companies sometimes help authoritarian governments (China, Saudi Arabia) suppress bloggers and tighten filters.
Chapter 5: Teachers in
state filed a case before the Supreme Court to get some reinstatement of portions of their union dues used without their permission for political purposes. The case is Davenport v. Washington Education Association. Article by Mark Mix in the D.C. Examiner, Dec. 18. 2005, here. Washington
ABC“Nightline” reported on a debate at on pornography on Yale University Feb. 29, 2008. A story by Martin Bashir and Eric Johnson is “XXXFounder: Porn is “Fantasy, not Reality.” Porn Face-off challenges assumptions, draw huge crowds at Yale, link here. The video link is here.
(Ch. 6, P. 44, after pr. 2) Of course, we could debate the "morality" of organ selling according to a "market": blood plasma (sometimes allowed), sperm (allowed), kidneys (not allowed).
(Ch. 6., P. 44, after pr. 3) One could actually entertain and 2nd Amendment argument against the military gay ban. Gays, like everyone else, putatively have a “fundamental right” to belong to collective pursuits for community defense (say, like the National Guard). Or, the 2nd Amendment could almost be viewed as an understatement of the responsibility (Swiss style) to bear arms as a contingent requirement for community defense (and indeed those who do not own weapons are indirectly protected by those who do, say, from car-jackings). So, the military gay ban becomes profoundly insulting, its “unit cohesion” justification coming across as a euphemism for the suggestion that gays burden the defense of the country or community.
(Ch. 6, P. 49, after pr. 2). Another small issue that bears a curious contraposition to discrimination against gays is discrimination against families with children in commercial rental housing. This is now illegal in most states and municipalities, although twenty years ago it was common for commercial garden apartments (especially in southern states) to offer "adult living." Landlords complain that children are destructive and cause enormous expense after move out . This may be particularly significant for individual property owners who must rent after job transfers and protect their individual credit. (It was not a problem in my case.) In Minnesota, higher rent may be charged only when the justification based on "experience" can be documented in detail. Any well-intended statutory restrictions upon individual property owners (particularly in the ability to evict non-paying tenants) simply increases the risk of eventual foreclosure and "walking," or of dangerous assumption sales.
Still another variation occurs when individual homeowners do not want to rent to unmarried couples or to gay couples because of their religious convictions.
6 (general): The legal ambiguities posed by the Internet and free speech
could be further extended to discussions of the right to use your own property
to run your own business. The
6: General In
some cases federal laws of court
opinions (Cratow in
6: From Electronic
Frontier Foundation (there are more
details there): “Oslo, Norway - Acting years
after pressure from the U.S. entertainment industry, the Norwegian government
yesterday indicted teenager Jon Johansen for his role in creating software that
In a related case, in November 2002 the U.S. Supreme Court upheld a California Supreme Court ruling that Texas software author Matthew Pavlovich should not stand a civil trial in California for republishing an open source DeCSS descrambling program on the theory that he knew that his publication could cause "general effects" on the motion picture and technology industries in California
Chapter 6, general: Check the Bill of Attainder Project at http://www.isc-durant.com/tom/billofattainder/
Their side of this may be summarized: ‘The Bill Of Attainder Project is dedicated to having the phrase, "bill of attainder" defined in the law as: "A law or legal device which outlaws people, suspends their civil rights, confiscates their property, punishes or puts people to death without a trial."
By establishing this definition in the law, the people are restored in their right to private property.’
They do offer a video for sale.
Chapter 6 general: The system of free agency for veteran players (that started with the Curt Flood case in baseball) as well as non-compete clauses in employment all provide interesting sidebar discussions of property rights.
Chapter 6 general: George Liebmann, “There is another way to settle the ‘eminent domain’ debate” discusses a concept called “the land readjustment method,” which is common in war-damaged areas overseas. Link.
Chapter 7, general. Related to freedom of religion is “right of conscience”; see http://www.doaskdotell.com/content/wchap5.htm note 124c.
Chapter 7, general: Regarding
separation of church and state: Pastor Gregory A. Boyd, of the Woodland Hills
Church in Maplewood, MN (St. Paul) has stirred controversy by refusing to
politicize his conservative religious views.
a story on the
October 8 to
(Ch. 8, P. 52, pr. 4) The "family bed" is part of the resurgent "attachment parenting" approach, in which parents spend as much time with young children as possible, including sleeping with them, carrying them in backpacks, taking them to work, breast-feeding until the age of 5, and so on. It requires total psychological dedication, especially from the male parent (after "taming" by his wife). There have been reports that the "family bed" may be dangerous to children.
(Ch. 8, P. 55. Pr. 3) Frankly, the cultural war over "family values" could take a particularly poignant direction. Are the personal lives of people without dependents "less valuable" (at least from the point of view of general welfare) that the lives of those with families? Companies are going to face this question.
One could speak culturally of an "obligation to parent." The Minnesota "Families" newssheet reports that single people are welcome to apply to become foster and even adoptive parents, even though many of the children needing parental care are severely developmentally disadvantaged and even though many single people, at least without the prior socialization of (heterosexual) marriage, would feel disinclined to take such a responsibility.
One could imagine that, as the eldercare crisis grows, “conservative” politicians will want to bring back filial responsibility laws (see note 196 at http://www.doaskdotell.com/content/wchap5.htm) and yet continue insisting that gays and lesbians not have the legal right to marry or to adopt (to elect their own family commitments other than for parents or siblings). (Note: filial responsibility still applies in some states with respect to Supplementary Security Income, SSI). This development would be roughly analogous to restoring conscription and keeping the military ban! Some insurance underwriters in the long term care industry predict that 50% of working adults will be taking care of parents by 2010 (up from 8% today in 2001).
In earlier generations, and sometimes today, unmarried children (especially women) were expected to stay close to their parents and take care of them. Their lack of control of or ownership of their own lives greatly inhibited their social and career potentials.
8 (General): The mapping of the human genome (announced
There is also controversy about intentionally
having children (sometimes by insemination) to provide transplantation tissue
for critically ill siblings (
8 (General): There have been occasional reports of disputes created by
sperm donors who want partial custody, particular of children of lesbian
couples after they break up (H.J. Cummins, “Girl, 7, Caught in 3-way Struggle,”
Minneapolis Star Tribune,
8 (General): Leslie Chang: “China Tries Easing Once-Brutal Approach to
Family Planning,” The Wall Street Journal,
Chapter 8 (General). There is appropriate medical concern over the rising age of first childbirth in developed countries, as older women may be more likely to have children with more medical problems. And one can elaborate this concern into arguments above career over family, education before family, etc. (especially for women).
Chapter 8 (General). There is a case in Wisconsin where a father of 9 children on probabtion for non-support was ordered not to sire children and the state supreme court upheld the order. The question concerns a putative due-process fundamental right to bear childreb.
Chapter 8 (General). As women get older, it is increasingly
difficult for them to conceive. Suzanne
Fields provided a pointed column about this in the
Chapter 8 (General): The notion that
there is an implicit “obligation” to parent has figured into the debate over
the sex scandal in the Catholic church and into the debate as to whether the
Church must at least, allow priests to marry as well as “asking” sexual
orientation and banning gays, military-style. The Vatican makes no bones about
it: homosexual acts are a sin because of the disconnection from procreation
(remember the “objective disorder” letter of 1986). In The New York Times, “Homosexuality in Priesthood is Under
A judge (Marilyn O’Connor) in Rochester, NY ordered a couple with four children not to have more children until the children they have now are out of foster care. http://www.cnn.com/2004/LAW/05/08/conception.banned.ap/index.html
Ohio Supreme Court will hear a case of Sean Tally, who has fathered seven
children with five women and fallem $40000 behind in
child support payments, and been ordered by Judge James J. Kimbler
not to get anyone pregnant for five years. This is called a “pay up or zip up”
order. Robert E. Pierre, “In Ohio, Supreme Court Considers Right to Procreate:
A Man Behind on Child Support Got Orders not to Beget,” The Washington Post,
8 General, On
Chapter 8 General: Other purported
fundamental rights include the “birthright” of every child to a mother and
father (an idea used against gay marriage and gay parents), and, with more
subtlety, the right of a parent to expect blood loyalty from children and even
siblings. Homosexual children feel that the demands of parents are sometimes
aggressive and intrusive, but parents may believe that the child’s family
responsibility loyalty was owed to them and taken “by force” – that the
children “owe” them grandchildren. This observation fits into an increasing
debate about filial responsibility laws.
finance reform can be a double-edged sword indeed. Although reformers want it,
it can not only interfere with the right of people to give their own money as
they choose, but also tend indirectly to limit political opportunities to
established parties and established special interests (John Stossel,
There are proposals to allow parents more “votes” according to their headcount of children. Do we give people the right, in a democracy, to more “votes” to make claims on the resources of others for their own needs (no matter how compelling)?
Some of the vote-count reform proposals, such as having voters enumerate second-choices and then requiring majority rather than plurality, would have the effect of making third parties more viable.
The enormous “excitement” over our “extra-inning” Bush – Gore election battle in 2000 (let’s say that Bush is the “visiting team,” and Gore keeps tying it up!) does bring up the question of whether the “right” to vote is undermined by the electoral college. In fact, as Harold Spaeth and Edward Conrad Smith point out (in the 1991 Harper College Outline The Constitution of the United States), the “right to vote” has only come to be viewed (in practical terms) as a “fundamental right” through political custom. (See http://www.doaskdotell.com/content/bor2note.htm.) It is not guaranteed “directly” in the Constitution or Bill of Rights, but is granted by and controlled by the states through legislation.(However, Article I Section 2 does state that the “people of the several states” shall choose Representatives in Congress, a phrase that could legally imply a direct “right to vote.”) Indeed, at one time states provided that only white men with property could vote, with suffrage for non-property owners, non-whites, women, and younger adults gradually (over a 150 year period) guaranteed by statutes and constitutional amendments (thus creating the impression of a “virtual” constitutional right to vote and guaranteeing a rather uniform national expectation of voting rights as implemented by states). The voting mechanism was not intended to implement pure “democracy” in the beginnings of our Republic: rather policy was to be developed through a carefully staged political participation and issue-centered debate. Nevertheless, it is critical that when a person votes, his or her vote be counted just once exactly as intended.
Of course, as the Constitution is currently
written, voters do not have a right to directly choose a president, and
the founding fathers apparently intended to have a buffer in the choice of the
presidency, partly out of deference to states and partly to prevent direct
democracy “mob rule” or excessive collusion between the legislature and the
executive (as in a parliament). Indeed, the Electoral College probably forces
presidential candidates to pay more attention to how various issues play out
with small groups of voters, although it might dilute the prospect that a third
party candidate could ever be elected. Even so the constitutional amending
process may well soon be tested over the Electoral College issue. Could a convention happen? Maybe, but it does not seem necessary; the
measure can be raised first in Congress and it should be. And states (like Maine already has) could
pass laws allow proportional allocation of electoral votes. And in Palm Beach County, Fla. (West Palm
Beach) there has been discussion over whether the fundamental rights of less
intact voters may have been violated by a ballot whose physical complexity did
not seem excessive to many people. See
Clyde Spillenger, “Benefits of the Electoral
College,” Minneapolis Star Tribune,
it appears possible that the 2000 election will be affected by the lack of
diligence by individual voters in the voting process, and there may be
ultimately little the law can do to undo this. But for another view, which
emphasize the past attempts to keep African-Americans from voting, see John
Lewis, “We March to Be Counted,” Newsweek,
It was pointed out on the Jim Lehrer hour that in the 19th Century voters had to cast their partisan choices very publicly (by reporting to a public place identified by colored banners) and could be fired for voting for the wrong candidates.
The Florida recount case (George W. Bush v. Palm Beach County Canvassing Board, et. al) was heard by the Supreme Court on December 1, 2000. A variety of interlocking questions are presented. To what extent to states have complete control over the selection of electors? What standard must be met by states in the mechanics of elections and ballot counting to ensure due process and equal protection as defined in the 14th Amendment? May states control their own use of judicial intervention in determining electors in a federal presidential election? Article II does say “Each State shall appoint, in such Manner as the legislature thereof may direct, a Number of Electors…” but does this preclude or somehow limit intervention by a state’s courts according to the constitution of the state, or give the legislature the authority to override the courts? What is clear, again, that the states as entities have a major intervention in selecting a president. This may include the responsibility for the legislature to select electors when the popular vote within the state for president results in a statistical tie. The Supreme Court, on December 4, 2000, vacated the Florida Supreme Court ruling, and sent it back, saying that the Florida Court had not clearly answered federal concerns about the proper recognition of Article II (particularly with respect to the extension of manual recount deadlines). Important precedents are McPherson v. Blacker (1892) and Minnesota v. National Tea Company (1940). The language of the Opinion did reiterate the fact that states grant the “right of suffrage” but may not do so in an unconstitutional manner (with regard to equal protection, due process, race, servitude, sex, age over 18, poll tax). However, liberal critics of the electoral process are correct in pointing out that the Executive Branch has considerable discretion in the way it implements administrative law (hence Cabinet appointments are sensitive, and not just John Ashcroft!). Furthermore, as the Winter 2001 UAW Solidarity points out, electoral representation was at one time partly based on slave counts and others who could not vote.
volleys continued to be exchanged between the Florida lower courts, Florida
Supreme Court, and U.S. Supreme Court by Dec. 11. In a second hearing, the
Supreme Court was probing the inconsistency of standards for counting “undervotes” among counties of a state, as to whether this
violated equal protection. Even liberal Justices like David Souter recognize
that following the letter of the law now (resulting in a “conservative”
outcome) may set a precedent for better human rights rulings on other issues
later. To follow all the possible outcomes of this, the best detailed source
(like a Bush-Libernan outcome) is USA Today on
final opinion of Bush
v. Gore was rendered
voting is a fundamental right (in the sense that it is still legislated by the
states), the capability of mentally incompetent people (whether because of Alzheimer’s Disease, AIDS dementia, retardation or any other
incapacity) is becoming controversial. Some states have laws regulating the
ability of mentally incapacitated adult to vote, as when they are assigned
legal guardians (who can answer for their contracts or debts), but they are
unevenly enforced. See Shankar Vedantam, “Dementia
and the Voter: Research Raises Ethical, Constitutional Questions” in The
Williams, in “The Perils of No Tax Liability,” (The Washington Times,
General: Imagine, if you will, a thought experiment in which adults with dependents are given more “votes.” (Of course this may go back to times, early 19th Century, when property owners had more voting power and blacks counted as 3/5 of a person…) This could liven the subtle but growing debate about “family responsibility” (or even filial responsibility).
Constitutionally, this would be murky. There seems to be nothing direct in the Constitution to prevent states from doing this with respect to their own laws (with state constitutional amendments – although maybe you would get back to Romer v Evans type issues). For national elections to the Senate, this might be possible, for the House, Article I Section 2 in conjunction with several amendments (especially 15, getting rid of the original 3/5 clause for slaves) it would still seem to be one adult, one vote. But you can always contemplate amendments….
(Ch. 10, P. 63, after pr. 5) The Preamble to the Constitution contains the phrase, "promote the general welfare." Indeed, this is legally a legitimate function of even the federal government (we can argue about explicit powers as listed by the founding fathers) and could be construed by social conservatives (or liberals!) as a warrant to "legislate morality" as a prerequisite to "ordered liberty." But "general welfare" historically (if not ideologically) tends to relate to how well one group or constituency (nationality, race, religious or cultural group, or income level) when compared to others. "Morality" of personal actions (personal accountability) becomes confused with loyalty to the immediate needs of one's group. Debate tends to concentrate on how groups treat each other than on how individuals do. After all, when a government does something wrong, it is usually the result of ego-mongering among those in power.
(Ch. 11, P. 67, pr. 3) Under strict scrutiny, fundamental rights may be abridged to meet a compelling state interest as long as the least restrictive means available is adapted by the state to achieve its necessary end. This observation can be especially important in First Amendment cases. We could debate the notion that for some rights, no abridgement will be allowed by the state under any circumstances. For example, we could study this notion with respect to the draft.
11, P. 68, 14th Amendment). The controversy over hate crimes
laws provides a good intellectual exercise in the application of equal
protection. "Libertarian" principle would say that all crimes of a
particular heinousness should be punished the same regardless of the victim.
(Ch. 11, general). Graham Boyd and Jack Hitt provide a cute expose on the compromise of the Bill of Rights by the war on drugs, in Harper's (December 1999). For example, unreasonable search and seizure occurs, the right to confront accusers is lost to snitches (Illinois v. Gates, 1983), and the will of voters in several states to allow medical marijuana is ignored. In 1989, an astonishing 62% of Americans were willing to give up some civil liberties to wage a "war on drugs"!! This enclosure presents a copy of the original draft of the Bill of Rights as proposed in 1789 (twelve articles). See note for Appendix 9.
The debate over drugs does bring up the “am I my brother’s keeper” problem. Phenylephrine HCL is a legal decongestant that is effective as nose drops. In extreme quantities it may raise blood pressure and act as an amphetamine, and may be confused with illegal amphetamines on drug tests. But, in chemistry, small changes to structure mean big changes in mind-altering effects. A similar compound, Pseudoephedrine HCL, is used in non-drowsiness-producing nose-drops The substance is useful in making methamphetamine. Should over-the-counter neo synephrine and Sudafeds be banned eventually because some people will use it? What about No-doz, that I remember students using even when I was in high school. Already in a few states (like Iowa) people have to sign to buy certain decongestants. Some teenagers overuse legal patent medicines in a practice called skittling.
11, general). Libertarians often
hold that unregulated immigration and emigration ought to be a fundamental
right (of course it is not, as most countries want to protect their own
residents from “undesirables” or from competition for jobs). A good example is provided by studying the
fix of high-tech workers brought over here on visa by companies and then
“indentured” to the employers, and particularly vulnerable to possible
deportation after a sudden layoff. (Brad
Stone and Fe Conway, “When a Pink Slip Means Immigration Limbo,” Newsweek,
Appendix 1: On the Proposed 28th Amendment, I would add to provision 12 the phrase, "… and without undue hindrance to legitimate adult communication." This would be necessary to properly meet the 1998 Child Online Protection Act.
(Ap 5, P 75, after pr. 5) The Fair Labor Standards Act actually puts dependent-less salaried exempt employees in the position of potentially being required to put in unpaid overtime for the benefit of those with dependents or families to support, regardless of state laws prohibiting discrimination on the basis of sexual orientation or marital status. Would gay marriage help alleviate the discriminatory effect on gays. ENDA conceivably could require change in other labor laws.
(Ap 8, P 84, pr. 5) Men, especially, are encouraged to use marriage as a cover for their own cultural limitations. That is one of my gripe's with "family values": that relationships are such an inviting cover for one's own weaknesses. Adult sexuality is supposed to become the bridge to "fitting in" to serving a larger purpose that will provide a support network and make one needed; it is not supposed to be "misappropriated" for vicarious "creative" purposes. But, come on now, is it healthy to predicate a sense-of-self upon committed partnership (marriage) with another?
(Ap 9, P. 86, pr. 2) A couple of other significant events "about 160" years ago: James Madison's death in 1836 (this bemused me), and the Amistad case (1839 through 1841, the film discussed in Chapter 3) in which slaves were "freed" and returned to Africa after the escaped from a Spanish slave trade ship. The Amistad represents the beginning of the time when slaves began to understand, under the paternalistic slavery economic system in the South, that they really should have a fundamental right to freedom. Until we all had the fundamental right to person freedom, one cannot really say that the Bill of Rights worked. (A good friend's email described the 1997 Amistad film as "libertarianeseque.")
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