Re: CIA & FBI, a marriage made in ___?

[Black Unicorn <unicorn@access.digex.net>]

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Mr. Weber comments:
 
>From: Black Unicorn
 
>Uni: "The hinge question is what I, or you, mean by "concepts of law."
 
>What I understand by concepts of law is "methods of coercion & 
>constraint"
 
>Uni: ". . . In my framework, I feel it is consistent to embrace the
>constitution and its doctrine while still resisting regulation."
 
>In my earlier statement, that "I'm not seeing the consistency in
>embracing the concepts of the law, while questioning the regulation of
>crypto through law enforcement",  I was contrasting endorsing the use
>of coercion while at the same time resisting its use.
 
Coercion is a tricky concept.  See below.
 
>In the framework of a lot of legislators, they would appear to embrace
>the doctrine of the Constitution while yet substituting mindless
>coercion for intelligent understanding of the intent of the
>Constitution. I don't think that it was the intent of this document to
>establish a more perfect government by those means.
 
No argument here.
 
>What is regulation, but the threat of the use of coercion & constraint?
>What is a domestic policy which does not involve regulation?
>That which is being regulated must appear to require this from having a
>potential for crime, in which case isn't this why it would be
>classified as a "crime problem" needing "political attention through
>law enforcement" (from their perspective)?
 
Consider this example, of which I am fond.
 
1>
 
A state, call it Indinois, employs a program in prisons.  A given 
robbery convict is consistently sentenced to 5 years.
After 2, the robber is given the option of taking an experimental 
vaccine in exchange for the waiver of her remaining sentence.
 
Coercion?
 
2>
 
Indinois sentences robbers to 2 years, but towards the end of the 
sentence the warden gives the robber a choice.  Either take the vaccine 
or get 3 years slapped on the sentence.
 
Coercion?
 
Why?  The robber is no better or worse off.  Is it merely the idea that 
the robber was "tricked" in the second example that makes coercion?  Or 
are both coercion?
 
I begin to shy away of calling all regulation coercive for this reason.  
It gets to the point where incentive and coercion are indistinguishable.  
The function of government becomes impossible.  The slippery slope to 
complete anarchy (one which I prefer not to follow ALL the way down) 
lies in this direction.
 
I find interference in the market offensive in general.  I accept 
regulation only in the instance that a market failure has occurred, and 
then grudgingly.  Large number problems, gaps in the availability of 
information, holdout problems or too few participants in the market are 
about the only situations that warrant regulation in my mind.  For a 
detailed examination of permissible market regulation with which I agree 
see Stewart, Krier & Manell, _Environmental Law and Policy_ (3d ed.).
 
The Supreme Court draws the line today such:
 
Most regulation today takes the form of conditional grants of funds to 
states under the federal spending power.  This is how the national 
minimum drinking age and the national speed limits are enforced at the 
federal level.  Provided the "strings" attached to the grant are 
"related to the federal interest in [the] particular national project[] 
or program[]" the grant seeks to promote, they are constitutional.  
_South Dakota v. Dole_, 483 U.S. 203 (1987).
 
I tend to find these sorts of incentives acceptable provided the grant 
of funds is not craftily calculated to make functioning competitively 
impossible, which today they often are.  Clipper is a prime example.  
It's not intended merely to incentivize makers to accept Clipper, but to 
drive other systems out of the market.  To me this is offensive 
regulation.  Were all systems equal, no export regulations, no threat of 
removal, a government subsidized production of the system the federal 
government would have employed is, when properly legislated (another 
question entirely), legitimate "regulation" in my view when the intent 
is not to throttle the life out of the offending market participants.  I 
might add that I don't think the crypto market needs regulation because 
I don't feel there is a market failure.  Instead the government is 
trying to assert that an externality (one of national security) exists 
which makes regulation a necessity.  I treat this topic and questions of 
coercion through threat of withdrawal of government largess in more 
detail in the legal note I posted to the list some months ago.  Anyone 
interested in my ramblings who missed the posting is free to mail and 
ask for a copy.
 
The constitutional requirement and the need for some coherent policy to 
be attached to grants explains why the Clipper and Digitel projects are 
hefted under the umbrella of the crime crisis.  It allows huge federal 
grants (bigger now that the crime bill is law) to be "stringed" and 
these projects (Clipper etc.) to be "voluntarily encouraged" by the 
threat of withdrawal of government largess.  (In this instance the crime 
bill grants).
 
In the words of Judge Stone, "...threat of loss and not hope of gain is 
the essence of economic coercion."  _United States v. Butler_, 297 U.S. 
1 (1936).  Unfortunately this is often taken to mean that as long as you 
frame the regulation as a conditional grant, it is constitutional.  In 
practice this is silly.  Any regulation can be drawn either way.  The 
core question should revolve around the definition of "threat of loss."  
What are the basic entitlements that apply?  What assumptions are made 
about what a given person/corporation is entitled to and what is the 
baseline of entitlement that lies beyond the reach of the federal 
government?  In my view this line lies close to the right to a free 
market, and one free of government monopoly.
 
For a detailed analysis of coercion See, Nozick, Coercion, in 
Philosophy, Science and Method (S. Morgenbesser ed. 1969); Zimmerman, 
Coercive Wage Offers, 10 Phil. & Pub. Aff. 121 (1981).
 
>Blanc
 
- -uni- (Dark)
 
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