State Laws

Political Philosophy Law
1

Would there be any need for state laws in a LFC society?

 

Here is a somewhat specific example regarding Insanity Law:

 

Four states (Montana, Utah, Kansas, and Idaho) have entirely abolished the insanity defense, and a majority of the states that still allow it place the burden of proof on the defense, usually by a preponderance of the evidence standard. The federal system and Arizona require that the defense prove insanity using the higher clear and convincing evidence standard… Clear and convincing proof requires that the truth of issue be highly probably, and this standard is greater than preponderance of evidence and less than proof beyond a reasonable doubt…

 

The guilty but mentally ill (GBMI) verdict is an attempt to bypass the definitional morass of insanity. The GBMI verdict is permitted in 13 states, and is usually an additional alternative verdict to the three more standard options of guilty, not guilty, and NGRI. Only Utah has adopted a GBMI verdict without also having an NGRI statute…

 

My understanding is that state laws can override federal law (which is what’s happening above), but that seems like a bad thing, since it allows different states to use different tests and standards to determine if someone’s legally insane. Wouldn’t it be better to have federal laws that apply to all states?

2

Different states could be necessary for creating different mechanisms of protecting individual rights. That is what I could imagine the necessity of state governments, so that people within the U.S. (or whatever it would be called without states) would have an additional means beyond revoking their voluntary contribution to governments, in keeping their government accountable. Think of it like an experiment in government. There wouldn’t be anything fundamentally different between states and between the states and the federal government. The states would come up with most necessary laws and enforcement mechanisms within their geographic regions, and the federal government would create the necessary laws for interstate disputes. Which I would think the federal government would have fewer than the states (I don’t really know though). It would also be the federal governments responsibility of making sure states don’t violate individual rights, mostly through the federal court system and ultimately the supreme court. The federal government would also have the capability of responding to foreign threats as well as internal threats such as fascist states (similar to the Union government fighting the slaving southern states).

 

Wouldn’t it be better to have federal laws that apply to all states?

 

The laws that would apply to all states would be the constitution. I don’t think getting rid of all state governments would be a good thing. Citizens would be able to more easily hold smaller (in size and geography) governments accountable and appeal to the powerful federal government if they need help.

 

Alex

 

P.S. No one has yet to comment on my member photo thingy, in any of the forums I have commented or started. It’s Bridget Regan from The Legend of the Seeker. You know the actress that plays Kahlan Amnell from the Sword of Truth series.

3

Just thought of another example that also applies:

 

"Sexually violent predator (SVP) laws permit states or the federal government to impose stringent requirements on sex offenders after their sentence has been completed if the person has a “mental abnormality” or personality disorder and who is likely to engage in sexual offenses if released" 4500 sex offenders have been committed under SVP laws since 1990, and only 494 of them had been released by 2007.

 

There’s 20 states that have SVP laws.

4

Just thought of another example that also applies:

 

"Sexually violent predator (SVP) laws permit states or the federal government to impose stringent requirements on sex offenders after their sentence has been completed if the person has a “mental abnormality” or personality disorder and who is likely to engage in sexual offenses if released" 4500 sex offenders have been committed under SVP laws since 1990, and only 494 of them had been released by 2007.

 

There’s 20 states that have SVP laws.

I agree with the insanity plea issue, but what’s wrong with this second thing?

5

My understanding is that state laws can override federal law (which is what’s happening above), but that seems like a bad thing, since it allows different states to use different tests and standards to determine if someone’s legally insane. Wouldn’t it be better to have federal laws that apply to all states?

Are you arguing against a federal system of government, or just the current state of affairs in the US? In the US, the responsibility for preventing the states from abolishing the insanity plea (a clearly abusive measure) doesn’t fall on legislators, it falls on the federal court system. That’s just how a federal system works.

In a federal system, the central legislature is limited to fighting specific, federally relevant crimes, like inter-state crimes or crimes that require some rare, specialized law enforcement skills smaller governments wouldn’t afford to maintain (i.e. investigations of serial killings). (and is limited to legislating against those crimes). It doesn’t have the authority to affect local government’s scope, except through constitutional amendments (since the Constitution is the blueprint for the entire system, modifying it of course affects the whole system).

And yes, a federal system is better than both one central authority and many totally independent governments. It’s better than one central authority because such an authority could not be accountable to the population or any watchdog groups (due to its massive size, the details would be impossible to follow along with, and in general the bureaucracy would be impenetrable). State governments on the other hand are smaller, and easier to keep an eye on. A federal system is better than many small governments because it allows the pooling of resources, when it makes sense to do so, as well as a consistent framework of basic rights that are constitutionally guaranteed across all jurisdictions (through judicial oversight of all forms of government, by a central judiciary).

The problems that exist in the US system are not inherent to federalism. The problem with the US system is that the original concept of rights it was founded on has been corrupted and lost its meaning. That is why the federal court system, which does in fact have the authority to make sure states don’t mistreat mentally disabled people, fails to do so. Because they don’t understand the concept of justice, and instead just have a pragmatic approach to the judiciary: putting dangerous people away, no matter if they’re guilty or incapable of discerning between right and wrong.

6

Are you arguing against a federal system of government, or just the current state of affairs in the US?

 

?? Neither. I’m asking why we need individual state laws, besides the whole ‘we need to make sure the fed can be held accountable’ argument. In the insanity law example, states use different standards to determine if an individual can be considered legally insane. And like you mentioned, some states completely got rid of the insanity law. I don’t see why states have any say in this at all- why don’t they all follow the fed’s decision? The SVP example is sort of similar. As far as I know there’s no federal SVP law (err, I’ll check), but 20 states decided to enact various versions of SVP laws. If SVP is good and just, why don’t we have one, CLEAR, federal version of it that all the states can use?

 

I agree with the insanity plea issue, but what’s wrong with this second thing?

 

I don’t want to get too sidetracked from the general topic, but what the heck.

 

SVP requirements: An individual must…

  1. suffer from some form of mental illness (notice that states have a huge amount of flexibility in determining how to define this)

  2. pose a future danger to society (is that determined by clinical or actuarial risk assessment? if clinical- research shows clinicians are wrong in the majority of cases, mainly because it’s based on non-scientific, subjective judgments. if actuarial- are dynamic factors included? if not, there’s many problems with this.. like the fact that people change over time, both mentally and physically.)

  3. have serious difficulty controlling his or her urges (again, ‘serious difficulty’ is not defined and we’re given no clues as to how to measure it)

 

OK- so after a sex offender has served his time, he can be imprisoned again, indefinitely, because the court determines (based on either of the assessments above) he might possibly commit a future crime.

 

Not to mention, the rate of sexual re-offense is about the same as (or lower) than other crimes.

7

I’m asking why we need individual state laws, besides the whole ‘we need to make sure the fed can be held accountable’ argument.

There’s no other reason. But this one reason is a pretty good one.

I don’t see why states have any say in this at all- why don’t they all follow the fed’s decision?

Because in a federal system of government, the federal government is not tasked with prosecuting most crimes. Furthermore, the federal and state governments don’t form a hierarchy, they have separate jurisdictions.

The SVP example is sort of similar. As far as I know there’s no federal SVP law (err, I’ll check), but 20 states decided to enact various versions of SVP laws. If SVP is good and just, why don’t we have one, CLEAR, federal version of it that all the states can use?

Because, in a federal system of government, crimes that have a local scope are not under the jurisdiction of the federal government.

8

I don’t want to get too sidetracked from the general topic, but what the heck.

 

SVP requirements: An individual must…

  1. suffer from some form of mental illness (notice that states have a huge amount of flexibility in determining how to define this)

  2. pose a future danger to society (is that determined by clinical or actuarial risk assessment? if clinical- research shows clinicians are wrong in the majority of cases, mainly because it’s based on non-scientific, subjective judgments. if actuarial- are dynamic factors included? if not, there’s many problems with this.. like the fact that people change over time, both mentally and physically.)

  3. have serious difficulty controlling his or her urges (again, ‘serious difficulty’ is not defined and we’re given no clues as to how to measure it)

 

OK- so after a sex offender has served his time, he can be imprisoned again, indefinitely, because the court determines (based on either of the assessments above) he might possibly commit a future crime.

 

Not to mention, the rate of sexual re-offense is about the same as (or lower) than other crimes.

You’re blatantly misrepresenting the issue. Read the Supreme Court ruling on why they upheld one specific law: http://www.law.cornell.edu/supct/html/95-1649.ZS.html

It is made very clear that the state “does not have a huge amount of flexibility in defining mental illness”, and that’s precisely the reason why the law was upheld.

9

I think the original premise is very question begging. Surely, Objectivists devotion to individual rights is unquestionable, as we all favor a system in which laws protect individual rights and don’t violate them. Despite this, many Objectivists overlook important procedural or structural requirements that must accompany any legal system in which substantively justifiable libertarian law can develop and last.

 

Namely, the danger and bad incentive structure of making law by centralized legislation is often totally ignored, or just assumed to be the way it has to be. Objectivists often, for example, advocate that the legislature, say, the US Congress, enact this or that objective law, that the US Constitution must still be in place in a laissez-faire society, just with some alterations to make it consistent with individual rights, and that the overall structure of what a laissez-faire system would look like is basically the same as the current system, just with the necessary alterations. Many Objectivists outright disdain the very idea of a decentralized legal system, why should we even have state laws, this thread asks; we should have one-world Objectivist government, another thread proclaims (which of course these views would logically imply.) Even other Objectivists, hesitant to follow the logic to those ends, at the very least hold an overly-rosy view of the US Constitution and the federal government system, that as long as we can make the necessary changes, then it will become a protector of individual rights, these Objectivist centralists assure us that we can restore true liberty by gaining influence over the federal government (in generally something similar to the current system), and then just making its institutions work for us. But this totally ignores the question of whether or not this system is in fact the best structural framework for a system aimed at producing and sustaining libertarian (rights-respecting) law.

 

It is quite paradoxical that the very people who support a free market society do not seem to care to  consider whether a free market could really last within a legal system centered on legislation. Many libertarians have argued that legislation as such is incompatible with freedom. If this is correct, then even statutes that seem to embody libertarian principles simultaneously subvert those principles by having a poor structural arrangement. There is another way forming law, however in which law is “found” rather than “made” which does not depend on legislation or centralized legislative bodies. This is the way of decentralized legal systems such as customary law, Roman law, and the common law. Until such questions as centralized vs decentralized legal systems, and which structural framework is more compatible with those attributes of objective law, uniformity, certainty, reliability, stability, rationality, etc. can be engaged with, then centralist Objectivists have not proven their case.

10

It is quite paradoxical that the very people who support a free market society do not seem to care to  consider whether a free market could really last within a legal system centered on legislation.

We did ask that question, and answered it with yes. But even if we hadn’t asked it, it still wouldn’t be paradoxical.

A legal system that isn’t centered on legislation: now that would be paradoxical.

11

I fail to see a differnce between ‘found’ objective law and ‘made’ objective law , as it concerns ‘objective law’. How would finding it and then proclaiming it ‘made’ change the principle of the law or statute?

12

You’re blatantly misrepresenting the issue. Read the Supreme Court ruling on why they upheld one specific law: http://www.law.cornell.edu/supct/html/95-1649.ZS.html

It is made very clear that the state “does not have a huge amount of flexibility in defining mental illness”, and that’s precisely the reason why the law was upheld.

 

I disagree; see Kansas v. Crane. The court outlined the three SVP requirements I listed above. Mental health professionals are called on in court as experts to address all three requirements. The most obvious objection to these requirements, besides those raised in my previous post, is that of psychologists determining if a sex offender is “likely to engage in predatory acts of sexual violence.” In other words, psychologists are being asked to predict the future (or future risk) of sexual violence. It’s here that my objections in requirements 2-3 can be considered.

13

Namely, the danger and bad incentive structure of making law by centralized legislation is often totally ignored, or just assumed to be the way it has to be. Objectivists often, for example, advocate that the legislature, say, the US Congress, enact this or that objective law, that the US Constitution must still be in place in a laissez-faire society, just with some alterations to make it consistent with individual rights, and that the overall structure of what a laissez-faire system would look like is basically the same as the current system, just with the necessary alterations. Many Objectivists outright disdain the very idea of a decentralized legal system, why should we even have state laws, this thread asks; we should have one-world Objectivist government, another thread proclaims (which of course these views would logically imply.) Even other Objectivists, hesitant to follow the logic to those ends, at the very least hold an overly-rosy view of the US Constitution and the federal government system, that as long as we can make the necessary changes, then it will become a protector of individual rights, these Objectivist centralists assure us that we can restore true liberty by gaining influence over the federal government (in generally something similar to the current system), and then just making its institutions work for us. But this totally ignores the question of whether or not this system is in fact the best structural framework for a system aimed at producing and sustaining libertarian (rights-respecting) law.

 

That’s a good point. I suppose I was assuming that the choice was between a central govt vs. the federal system.

 

The more I read about state laws, the more I see inconsistencies, as in the examples I mentioned above. If concepts like legal insanity and svp are so just and necessary, why are the definitions, standards, and methods used to determine them different from state to state? (Isn’t that… nonobjective?)

14

Would there be any need for state laws in a LFC society?

 

My understanding is that state laws can override federal law (which is what’s happening above), but that seems like a bad thing, since it allows different states to use different tests and standards to determine if someone’s legally insane. Wouldn’t it be better to have federal laws that apply to all states?

 

My understanding is that federal law trumps state law, referred to as federal preemption and defined by Article VI, Section 2, of the U.S. Constitution.

 

State laws in an LFC society remain relavent to establish local guidelines in areas where federal oversight is limited or nonexistent.  If one considers the citizen to be a consumer of law, a certain amount of local diversity in legal tests and standards is desireable for encouraging competitive solutions to criminal behavior. Even when a particular penality is proven to be more effective in addressing a particular crime, local attitudes may favor a customary solution (or some other) to address criminal behavior in their marketplace.  Legal variations allow individuals to identify and locate where marketplaces more closely reflect their own lifestyles and methods of doing business.

15

My understanding is that federal law trumps state law, referred to as federal preemption and defined by Article VI, Section 2, of the U.S. Constitution.

 

Sorry for the poor phrasing in the OP. You’re right- federal law trumps state law in federal cases. For instance, if you rob a bank in Montana, you’d theoretically be able to use the insanity defense, even though it doesn’t exist in Montana- but if you accidentally shot your wife or something, that would be under state jurisdiction, and you wouldn’t be able to use the insanity defense.

 

State laws in an LFC society remain relavent to establish local guidelines in areas where federal oversight is limited or nonexistent.  If one considers the citizen to be a consumer of law, a certain amount of local diversity in legal tests and standards is desireable for encouraging competitive solutions to criminal behavior. Even when a particular penality is proven to be more effective in addressing a particular crime, local attitudes may favor a customary solution (or some other) to address criminal behavior in their marketplace.  Legal variations allow individuals to identify and locate where marketplaces more closely reflect their own lifestyles and methods of doing business.

 

An alternative is to have uniform laws that apply to all states, and have state courts try all crimes according to these laws. In an LFCS, most state laws wouldn’t even exist (there wouldn’t be driving limits, seatbelt rules, laws against cell phones while driving, mandatory car insurance, etc). The few laws that would still exist (ie: laws against murdering, kidnapping, raping, etc) would be uniform across all states. I suppose the only variation would be in how criminals are dealt with (ie: would the death penalty exist?) in different states.

16

Coming back to this now, I see my error- but I have another question.

 

And yes, a federal system is better than both one central authority and many totally independent governments. It’s better than one central authority because such an authority could not be accountable to the population or any watchdog groups (due to its massive size, the details would be impossible to follow along with, and in general the bureaucracy would be impenetrable). State governments on the other hand are smaller, and easier to keep an eye on. A federal system is better than many small governments because it allows the pooling of resources, when it makes sense to do so, as well as a consistent framework of basic rights that are constitutionally guaranteed across all jurisdictions (through judicial oversight of all forms of government, by a central judiciary).

 

Certainly the most ambitious attempt to impose limits on the State has been the Bill of Rights and other restrictive parts of the American Constitution, in which written limits on government became the fundamental law to be interpreted by a judiciary supposedly independent of the other branches of government. All Americans are familiar with the process by which the construction of limits in the Constitution has been inexorably broadened over the last century. But few have been as keen as Professor Charles Black to see that the State has, in the process, largely transformed judicial review itself from a limiting device to yet another instrument for furnishing ideological legitimacy to the government’s actions. For if a judicial decree of “unconstitutional” is a mighty check to government power, an implicit or explicit verdict of “constitutional” is a mighty weapon for fostering public acceptance of ever-greater government power.

 

This danger is averted by the State’s propounding the doctrine that one agency must have the ultimate decision on constitutionality and that this agency, in the last analysis, must be part of the federal government. For while the seeming independence of the federal judiciary has played a vital part in making its actions virtual Holy Writ for the bulk of the people, it is also and ever true that the judiciary is part and parcel of the government apparatus and appointed by the executive and legislative branches. Black admits that this means that the State has set itself up as a judge in its own cause, thus violating a basic juridical principle for aiming at just decisions. -RB

 

OK-  we have Nicky saying that the different branches of government are accountable (both to the overall population, and to each other). Right. That’s how the federal system is portrayed on paper. But is the government as a whole actually accountable to the public? And are the different branches of government actually accountable to each other, or do they just use each other to extend their own power? That is RB’s claim. Specifically, his main problem is with the Supreme Court having a monopoly over constitutional interpretation. “If the Federal Government was created to check invasions of individual liberty by the separate states, who was to check the Federal power? Smith maintained that implicit in the check-and-balance idea of the Constitution was the concomitant view that no one branch of government may be conceded the ultimate power of interpretation: " It was assumed by the people that the new government could not be permitted to determine the limits of its own authority, since this would make it, and not the Constitution, supreme.” That sounds like a pretty valid objection.

17

Specifically, his main problem is with the Supreme Court having a monopoly over constitutional interpretation.

One could almost certainly come up with a better system. If you got Madison and his buddies and walked them through the last 200 years, they would almost certainly come up with a constitution that was clearer about many things, and might come up with other structures to limit threats to the constitution. One could have some other institution that acted as a check on the other three. Finally, though, if there is disagreement about interpretation, there has to be some way to resolve it. So, in the end, you will have a group of people acting as the ultimate arbiters of constitutional interpretation.

18

Well, federal judges (including SCOTUS justices) are nominated by the President and confirmed by Congress. The President is elected by the Electoral College, and Congress is elected by the population of each state or district. So states and the people are just one step removed from the decision.

 

That step is not what makes the judiciary “federal” though, what makes it federal is its scope. You could change the nomination and confirmation process, to circumvent the federal executive for instance. That wouldn’t change the fact that the federal judiciary is “federal”, but it would make it more independent from the President. Same with the confirmation process.

 

You could have state governors for instance nominate judges and SCOTUS justices, and/or some other institution set up directly by the states for this specific purpose (something similar to the electoral college) confirm them. That would remove the problem of the President and Congress’s influence over SCOTUS, but would create other problems.

 

Either way, if the population of the country supports excessive government, one of the two levels of government would gain excessive power. I guess, in hind sight, it might’ve been better if it was the states who gained more power, and the federal government less. There are more states, and they would’ve been able to check each other’s power grabs, to some extent.

 

P.S. FDRs threats aside, a sitting President and Congress in fact have very little immediate influence over SCOTUS. A President nominates one or two justices, three at most. And, once appointed, justices are there for life. So, in the end, they act based on their beliefs. And the ideology of the justices is, in the end, determined by the ideology if the population, not anything else. No matter who did the appointing, the ideology would be the same: pragmatism. 

 

The only difference would be in which direction they were more likely to compromise: towards the state power grabs, or federal power grabs. 

19

OK-  we have Nicky saying that the different branches of government are accountable (both to the overall population, and to each other). Right. That’s how the federal system is portrayed on paper. But is the government as a whole actually accountable to the public? And are the different branches of government actually accountable to each other, or do they just use each other to extend their own power? That is RB’s claim. Specifically, his main problem is with the Supreme Court having a monopoly over constitutional interpretation. “If the Federal Government was created to check invasions of individual liberty by the separate states, who was to check the Federal power? Smith maintained that implicit in the check-and-balance idea of the Constitution was the concomitant view that no one branch of government may be conceded the ultimate power of interpretation: " It was assumed by the people that the new government could not be permitted to determine the limits of its own authority, since this would make it, and not the Constitution, supreme.” That sounds like a pretty valid objection.

 

Well, you know what assume does…

 

One line I’d strike from our Constitution is, promote the general Welfare.  The promotion of such generalities is a communal goal, and undermines securing individual rights to pursue happiness.