{ Deleted Passages }


A Policy and Regulation Affecting Two Rights at Once

I removed this section rather than investigate the technical aspects of the controversy further, in case I had omitted any more convincing basis for the government's position.

The federal government has a disturbing habit of penalizing behavior that has never been considered criminal. See 34.G.2.'s discussion of how "structuring," which means moving one’s own money in and out of bank accounts in amounts under $10,000, can get that money seized; and 13.J., which explains how lying in any statement or document likely to get to a federal employee can land someone in the federal penitentiary.

Here’s another example, though people will disagree, some vehemently, about whether it’s good public policy.

In early June, 2015, the State Department proposed a new regulation whose substance matches, or rather exceeds, a demand the State Department has already made without such authority. That demand led to a current lawsuit in federal court, brought by a nonprofit called Defense Distributed. Defense Distributed posts, online, plans and machinery for use in making various firearms. The information it distributes is already publicly available. The State Department demanded that Defense Distributed submit such information for prior screening and possible censorship. That’s a “prior restraint,” which usually violates the First Amendment (see 34.A.1.). The State Department’s justification (at least in part): the international nature of the Internet, and the resulting likelihood that various dangerous people in other countries will access the information.

While that lawsuit has been dragging on (and as of this writing, the lawsuit is not going especially well for the plaintiff), out came a proposed regulation. It would expand the definition of “technical data” about weaponry, for which prior federal consent to publication is supposedly required, to include the sort of public discussion one now sees on many an online forum frequented by gun enthusiasts. And while it seems to contain an exception for information already in the “public domain” (see 14.M.1.b.), it actually limits that exception to information the State Department has explicitly recognized as being in the public domain.

As to whether this regulation would infringe on Second Amendment rights: well, it could easily be said to impinge on them, but whether that impingement is an infringement would probably have to be settled in court.

The period for public annotation on this proposal expired on August 3, 2015. Future editions may report on whether this proposal becomes an actual regulation, and if so, what lawsuits follow and whether they succeed.

Original Version of Section 34.G.1., Currently Titled "Controversies at the Borders of Parental Rights"

I toned this section down, but here's the original, more partisan, more indignant version.

1. Nibbled to Death by Ducks: Government Infringements on Parental Rights

You know that fundamental right I just mentioned, the one about being able to raise your kids as you see fit? There’s an alarming societal trend toward encroaching on it.

I’ve already addressed termination of parental rights (see 14.G.11.), but short of that extreme, we’re seeing more and more instances where local authorities — whether child welfare bureaucracies or the police — descend on some parent who’s dared to follow what used to be common parenting practice. I’m not just talking about the milder forms of corporal punishment, but decisions like allowing one’s eight- or nine-year-old child to play in a public park without a parent-as-bodyguard present, or packing a lunch that doesn’t meet some bureaucrat’s notion of what the child should eat.

Query: at what point does this sort of hovering and intrusive second-guessing of parental decisions turn into state parenting of children, with biological or adoptive parents as merely unpaid government functionaries? **I invite those inclined toward science fiction to explore a future parent’s challenge to the kind of system we might see, should this trend continue.**

Deleted Rant re Wickard v. Filburn

Here's a rant I originally included after my explanation of Wickard v. Filburn in the section I call "The Elastic Commerce Clause." It's based on a post I did in March 2012 on my blog, Looking Around.

(Editorial rant coming up. Feel free to skip ahead.) If George III had insisted that colonists destroy their own wheat and pay a penalty for growing it, you can bet your Liberty Bell that the "Injuries and Usurpations" detailed in the Declaration of Independence would have included something like this:

"He has dared to penalize the self-reliance and honest Industry of our Citizens, by demanding the Wanton Destruction of grain grown to feed their own livestock, and further imposing financial Penalties for the production of such grain, because his preferred Merchants have thereby lost the Opportunity to extort exorbitant prices for the grain in their own Stores."

And can you picture Benjamin Franklin asking James Madison: "James, about that provision according Congress the power to 'regulate Commerce . . . among the several States': might that allow Congress to order a farmer to limit his wheat harvest, so that he will need to buy more wheat, which will in some small measure affect the price of any wheat sold across the boundary between one state and another?"

Would not Madison have replied, "Benjamin, have you been smoking General Washington's hemp again?"

And as for the notion that those poor simpletons the Founding Fathers didn't really understand economics and political systems nearly as well as our current crop of politicians . . . need I say more?

(Rant over.)

Deleted Details re "State Action" in 34.H., Equal Protection

Here's a fair amount of detail I decided was unnecessary to this section, since the federal government is in fact treating its authority for the statutes in question as primarily the Commerce Clause.

A 1961 U.S. Supreme Court decision found state “support” where a state agency leased property to a restaurant. On the other hand, a 1972 Supreme Court decision found that granting a private club a liquor license wasn’t “support.”

There’s some reason to think that (contrary to what critics of governmental power might expect) the scope of what’s considered state “support” of private action has actually gotten narrower over time. Some lower federal court decisions also suggest that a private party’s going into state court to enforce some private right doesn’t amount to the state “supporting” that private action.

A 1964 Supreme Court case — dealing with the Equal Protection clause itself, rather than any federal statute — found state action in a privately run amusement park when a deputy sheriff who also worked for the park, wearing his official badge, ordered black visitors to leave and then arrested them for trespassing when they refused. The case raises, but doesn’t answer, the question of what the outcome would be if a state actor simply enforced the wishes of a private business to discriminate. Since the park employed this sheriff specifically to enforce the park’s segregation policy, the connection between private and state action was ample. A dissenting opinion in that case argued that the situation was no different than if the park had called the cops and asked them to arrest the black visitors for trespass, and that this would not be a violation of equal protection. Based on my admittedly limited research, we still don’t know whether police granting a business’ request to arrest someone for trespass would amount to state “support” of discrimination.

We can look at a somewhat analogous situation involving another constitutional right, freedom of speech, and see if it sheds any light. Since a private shopping mall has the right to prevent undesired speech on its premises, there’s no violation of the First Amendment if the mall calls the cops to have an unauthorized speaker arrested for trespass. But then, we don’t, as far as I know, have a federal statute saying that the state may not “support” a private restriction on free speech.

This discussion could easily become circular. If the federal government already has some authority (e.g. the Commerce Clause) to prohibit discrimination on private property, then the use of state power to arrest someone who challenges that discrimination (for trespass, say) is state action violating the federal prohibition. If the feds don’t have that authority, then under related legal rules, a federal statute authorizing lawsuits when the state “supports” private discrimination might go beyond the federal government’s constitutional authority.

Back to Main Page