National speed limits and expansion of federal power...

[deven@ties.org (Deven T. Corzine)]

At 11:47 PM 3/26/96, Jim Bell wrote:
>They just recently repealed the national 55 MPH speed limit.  Even though it
>was repealed by law, in the same way it was passed, plenty of people have
>argued that the Federal government has no jurisdiction in this area.  Those
>arguments are absolutely valid, even if they were ignored.  The danger in
>giving the government implicit authority in areas not mentioned in the
>Constitution is that it is not clear how far such justification extends.

Actually, the national government didn't even *pretend* it had jurisdiction
here.  Instead, they used an indirect approach -- they passed laws which
denied some of the existing highway funding to states with higher speed
limits than 55 MPH.  (Later this limit was raised to 65 MPH, given some
additional restrictions such as proximity to population centers.)

Any and all states were perfectly free (in theory) to ignore this "national
speed limit" and set any limit or no limit at all.  In practice, no states
exercised this hypothetical freedom, because they had already grown dependent
on highway funds provided by the national government.  Thus, through indirect
pressure exerted through the funding mechanisms, the national government was
able to usurp perogatives which were clearly in the domain of the states.

The national government has expanded greatly in size and powers in times of
war and national crisis.  In particular, FDR spearheaded the massive growth
of the national government in response to the Great Depression, and it has
continued to grow ever since.  More and more often, the national government
usurps traditional state's roles, even in situations of unquestionable state
jurisdiction such as national speed limits.  The elastic clause was one key
tool used for this expansion.

Another key tool is the commerce clause, which has been seriously abused to
secure new powers for the national government.  I don't think I'll go into it
right now...

>If the government can limit us to 55, then why can't they limit us to 40-bit
>keys?

The national government didn't impose 55 MPH speed limits on us, the states
did it under national pressure.  As for whether they can legitimately limit
cryptography use and technology, we don't have any clear answer yet, in any
legal precedent.  Of course, most of us hold the opinion that cryptography
should be considered Constitutionally protected as free speech, but politics
get involved when these things get decided...

Deven