Here’s a recent test case on which the Supreme Court decided in favor of a broad, rather than a narrow, reading of Commerce Clause powers: Raich v. Gonzales, in which the Supreme Court ruled (6-3) that the Commerce Clause authorized Congress to regulate the production, distribution, and use of marijuana — even when the marijuana was produced, distributed, and used entirely within the state of California and entirely for non-commercial purposes.

Setting aside the question of what legal or political outcomes you consider to be most desirable, is there any plausible reading of “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, which grants Congress the power to regulate non-commercial transactions for marijuana, carried out between people who live in the same state (and are not members of Indian tribes)? If so, what is that reading and how is it justified?

“My questions: Is there anyone who’s neither a neocon or a liberal hawk who can take on McCain in 2008?”

Howard Dean?

I have my problems with him, but I’m not holding my breath for someone better out of the Democratic Party as presently constituted. He’d also ensure that McCain wouldn’t have the “straight talkin’” market cornered in the general election.

Well, depending on context, it may be best just to say “copyright restrictions” or “patent restrictions.”

If you need to tag the phenomenon as a whole, though, I’m keen on “intellectual monopoly,” or “intellectual protectionism”. If I’m describing the monopolists themselves or the monopoly-pushers, I am especially fond of the phrase “intellectual enclosure movement.”

I demand $50 in royalties for every time you use any of these phrases!

Oscar,

I’m not sure I quite understand your example. Is the government in question selling sidewalks to a single bidder? Are they requiring bidders to pledge to enact the invasive “security” measures in order for them to bid? Are they requiring bidders to keep the sidewalk property that they buy, or can thos bidders transfer ownership to other people under different terms?

I ask, because depending on your answers to these questions I might find the government’s actions objectionable or unobjectionable; but in the cases where it would be objectionable, the reasons for the objections would have nothing essentially to do with limitations on private owners of any resource that could be said to serve a “public function”. They would, rather, have to do with the government’s decision to “privatize” resources in a way which was (1) unfair, and possibly (2) not effectively privatization at all, but rather franchsing out management of resources that the government retains effective control over.

In either case the issue would be an illegitimate transfer of property, not the obligations that legitimate private property owners do or do not have.

(To illustrate: imagine a case in which the goverment privatizes all the sidewalks in Manhattan by transferring them to associations of all the people who live or own a business on a particular block, with no strings attached other than the requirement that each person in the association get a number of transferrable shares of ownership. Suppose also that for some reason the association on a particular block of 112th street decides to impose the kind of onerous procedures you imagine. What are people going to do? Well, they’re going to walk a block around to 113th street or 111th street. That sucks, but it’s hardly a catastrophe and hardly seems any reason for the justice system to intervene. Now suppose that NYC sells all the sidewalks to a single bidder, ScumCo, based out of Hoboken, and only on the condition that ScumCo institute those kind of procedures, institute them everywhere, and not sell to anyone who won’t institute them. The latter case certainly does seem objectionable, but I think the reason that it does seem objectionable has much more to do with the kind of restrictions that the city government placed on who can own the sidewalks after privatization than it does with the prerogatives of private owners themselves.)

Berg: “James Madison, in Federalist 41, responded to the idea that anyone might interpret it in such a way with outright ridicule and a lecture on grammar . . .”

So antifederalists feared that the General Welfare clause would provide a fig leaf for the endless expansion of government power, and Madison ridiculed the notion.

Thank God J.M. put a stop to all that with a grammar lesson. How’s that been working out for him lately, anyhow?

“Hamlet”: ‘The “neg” is designed for use on narcissistic young women in clubs, …’

Is the fact that you don’t feel particularly sympathetic to the women who are targeted by this tactic supposed to make it okay?

“Hamlet”: “Yet from a practical standpoint, it doesn’t matter whether female preferences come from the patriarchy or evolution, or both: men will still have to meet those criteria to have relationships or sex with women.”

Suppose this is true. Then so what? There’s no mandate or overriding obligation on men to have relationships or sex with women by any means necessary. If that is the way that these men think, then what they think is seriously fucked up. If it is not, then they will have to explain why they think that a lay, specifically, is more important than treating women like fellow human beings, equally worthy of respect.

Hersehele: “If this is these peoples’ sexual fantasy — if they get off on violent mutilation — it is orders of magnitude better that they get dolls for that purpose, and stay far the hell away from real women.”

Of course it is better to do creepy things or brutal and violent things to a realistic-looking doll than it is to do them to a real woman. But (1) just managing to be better than a rapist or serial killer is not enough to guarantee that you’re not a creep; and (2) I don’t know what evidence, if any, you have for the implicit claim that men who indulge in violent or pedophiliac fantasies with RealDolls will substitute that for acting out, or trying to act out, violent or pedophiliac desires on real people. This is a standard argument that you get from porn-liberals and prostitution-liberals, but the number of rapists, serial killers, and pedophiles in the real world who use violent pornography or child pornography to “prime” themselves (and, in the case of pedophiles, often to groom and then control their victims), and the number who begin their careers by using and attacking women in prostitution, ought to at least make you pause before suggesting this kind of substitution theory.

I’d be glad, personally, to make any kind of RealDoll that any man wants for any purpose at all, if I could make it a condition of ownership that the new owner had to go and live on a private island of my choice in the South Pacific, where he could enjoy the RealDoll to the end of his days but would never come into contact with human beings besides his fellow RealDoll Islanders. Barring that, though, I have trouble regarding this as obviously positive.

Vivid: “Why is it that if a man does not want or can’t have a relationship with a real woman, he must hate them? Maybe he simply doesn’t want the bother, because he doesn’t think it is worth the effort?”

Because it suggests that, at best (1) he thinks of his sexuality as a matter of “release” for an undifferentiated appetite, (2) thinks of intimacy with a a real woman as merely “bother” or “effort” that you have to go through in order to get that “release,” and (3) that therefore he prefers a lifeless tube for the purposes of “sex” that’s hard to differentiate, in any relevant respect, from necrophilia. If a man thinks that way, I’d certainly rather that he do it with a doll than with a real woman (but see above on substitution theories); but that doesn’t keep me from thinking that his attitude towards women, and towards sex, is profoundly creepy and anti-woman — indeed, anti-human.

Matt McIntosh:

Has anyone else noticed that the larger and more diverse a firm gets, the more it starts to resemble a state in some ways?

Yes.

The answer can be obtained by referring to chapter 9, pp. 612ff above, where we saw that the free market placed definite limits on the size of the firm, i.e., the limits of calculability on the market. In order to calculate the profits and losses of each branch, a firm must be able to refer its internal operations to external markets for each of the various factors and intermediate products. When any of these external markets disappears, because all are absorbed within the province of a single firm, calculability disappears, and there is no way for the firm rationally to allocate factors to that specific area. The more these limits are encroached upon, the greater and greater will be the sphere of irrationality, and the more difficult it will be to avoid losses. One big cartel would not be able rationally to allocate producers’ goods at all and hence could not avoid severe losses. Consequently, it could never really be established, and, if tried, would quickly break asunder.

In the production sphere, socialism is equivalent to One Big Cartel, compulsorily organized and controlled by the State. Those who advocate socialist “central planning” as the more efficient method of production for consumer wants must answer the question: If this central planning is really more efficient, why has it not been established by profit-seeking individuals on the free market? The fact that One Big Cartel has never been formed voluntarily and that it needs the coercive might of the State to be formed demonstrates that it could not possibly be the most efficient method of satisfying consumer desires.

— Murray Rothbard, Man, Economy, and State Chapter 10, section 2-F

Part of the point here being that calculational chaos is not limited to states; it’s just that the organized force of the state is the only way in which calculational chaos above a certain level can reliably be sustained.

Of course Sony, as a beneficiary of government-granted and government-enforced monopolies on its gargantuan copyright and patent portfolio, is as good an example as any.

Brandon Berg:

Wal-Mart and Microsoft aren’t angels by libertarian standards, but government has arguably hindered their growth as much as helped it, unless you count copyright enforcement in the case of Microsoft.

And extensive use of “eminent domain” theft in the case of Wal-Mart. I’m not sure I understand the “unless” in regard to Microsoft, though; I mean, unless you count an annual budget appropriated out of tax funds, the government has arguably hindered Amtrak more than they’ve supported it. But why wouldn’t you count that?

Here’s a few limitations on the prerogatives of the several states that the federal Constitution clearly imposes based on any reasonable reading of the original text:

Article I, Section 10, Clause 1: No State shall … grant any Title of Nobility.

Article IV, Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, …

If the legislature of Alabama convened and duly voted to make Roy Moore the Lord Protector of the Commonwealth of Alabama and to dissolve itself as a legislative body, granting all legislative power to Lord Moore’s edict, then the federal government would stop them from doing that, probably by means of the Court, on the grounds that states have don’t have the right to grant titles of nobility or create non-republican forms of government. I imagine that you probably wouldn’t like Roy Moore being made Lord Protector (I know that I certainly wouldn’t); but does your support for “states’ rights” commit you to defending their right to do so against federal interference?

If it does, then what has your support for “states’ rights” got to do with federalism anyway, as opposed to outright dissolution of the federal government?

If it doesn’t, then don’t you have to revise your test for “states’ rights,” since you would then be supporting some kinds of federal interference with state prerogatives but not other kinds? And what makes the difference between the kinds that you support and the kinds that you don’t?

I agree that were the MTA private there wouldn’t be any issue at all, and that (like many other institutions that are currently controlled by the government) the public funding but quasi-private function puts these kind of claims into a gray area. But there seem to me to be at least three questions here that haven’t decisively been answered in favor of unwarranted searches:

1. Do presumptions of liberty counsel against (ex ante) invasive searches if there’s no evidence for or against them preventing crime?

2a. Is the counsel rendered by presumptions of liberty decisive on the question of what MTA officials have the right to do?

2b. Is the counsel rendered by presumptions of liberty decisive on the question of what it’s prudent to have MTA officials doing?

I take the answer to (1) to be clearly “Yes” and the answers to (2a) and (2b) to be probably “Yes,” as long as the MTA is controlled by the Port Authority. You may of course have good reasons for seeing it differently on these points; but what I’m worried about here specifically is the grounds for straightforwardly connecting “prudence” with a tighter regime of security restrictions. Setting aside the legal and moral questions involved in questions like (2a), aren’t there good reasons to think that prudence very often suggests higher rather than lower standards for government-mandated interference in our daily lives? Surely the merely possible benefits of the policy (if we don’t have any persuasive evidence for or against thinking that they’ll be realized) have to be weighed against the known costs when you’re doing prudential calculations, don’t they? Hence the question of where the burden of proof lies, at least as far as prudence is concerned.

Oscar: “I am not sure on what basis courts would rule, but to me the public/private division is not a particularly valid approach. As you note, the subway is fulfilling a public purpose. Part of that public function is as a public place (the cars themselves, the stations, any food joints on station premises, etc.) as well as a public means of transportation.”

Well, the issue is not (or at least should not be) a “public function,” but rather government funding and government control. I agree with Irfan that if the MTA were private then the issue would be unambiguously settled by whatever terms of business the owners wanted to set — just as privately owned department stores (which arguably serve an important “public function” of distributing needed goods) can demand that patrons submit to searches of their bags and remove those who refuse from the premises. Those kind of decisions might be wise or foolish, depending on the details of the situation, the search procedures, some facts about deterrance which we’ve stipulated we just don’t know yet, etc. But the wisdom or foolishness of a strictly private institution’s policy certainly wouldn’t (oughtn’t, at least) be a proper topic for courts to consider.