kfl%mx.lcs.mit.edu@MC.LCS.MIT.EDU.UUCP (07/31/86)
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Date: Sat, 26 Jul 86 00:38:41 EDT
From: "Keith F. Lynch" <KFL%MX.LCS.MIT.EDU@MC.LCS.MIT.EDU>
Subject: Proposed amendment
To: Hoffman.es@XEROX.COM
cc: Reges@SU-SCORE.ARPA, JOSH@RED.RUTGERS.EDU
From: Hoffman.es@Xerox.COM
I do indeed mean to do away with vice laws (at least so far as
they pertain to what I do in private, not on the streets) and
other such attempts at legislating "morality".
I agree. But why exclude what is done in public?
At first I thought I could come up with one quickly, modeled on
some existing amendments, but as I wrote it, it kept getting more
complicated.
What's needed isn't a privacy rights amendement, but a noncoercive
activity amendment. How about:
No laws, taxes, or ordinances are valid that attempt to prohibit
or to single out activities that harm nobody who does not
voluntarily consent to participate in said activity. For purposes
of this amendment, seeing, hearing, and reading things is not
considered harm. For purposes of this amendment, increasing the
probability that a someone will commit a crime is not considered
harm.
Every person who is at least 21 years of age shall be presumed to
be capable of voluntary consent, unless he has voluntarily
declared himself incompetent, or has been declared incompetent
by a court of law after having been convicted of a crime. The
period of incompetency declared by a court shall not exceed the
maximum sentence allowed for the crime he was convicted of.
There are probably some loopholes in this, but it's a starting
point.
My intention is for it to legalize nudity, loitering, prostitution,
driving without a seatbelt, riding a motorcycle or bicycle without a
helmet, drug use, drug manufacture, drug sales, gambling, pornography,
suicide, voluntary euthanasia, and all other victimless crimes.
Please note that I do not necessarily advocate any of these
activities, I simply don't think it should be up to government to ban
them.
I also intend for it to focus the debate on government regulation of
business on whether the consumer is giving voluntary consent to the
risks of the product. Also, zoning laws, rent control, and
affirmative action would be abolished.
The part about seeing and hearing needs work. I do not think there
is anything wrong with laws against very loud noise. Loud noises can
be disruptive and even damaging. Similarly, the restriction on laws
forbidding things from being seen should not prohibit a law making it
illegal to shine a bright spotlight in someone's window at 3 am. But
painting one's house purple should always be allowed. As should
dancing naked in one's front yard. I can't quite decide how to make
this distinction explicit.
It is not my intention to legalize fraud. Fraud is when there is no
voluntary consent. It is not my intention to allow children to
participate in any such activities. Children cannot give voluntary
consent.
The amendment neither legalizes nor illegalizes abortion, as the
issue in abortion is precisely whether the fetus is 'someone' If the
fetus is someone, the fetus must be presumed to not consent to the
abortion.
The amendment also abolishes involuntary commission to a mental
hospital, except for crimes. One terminolgy kludge: The law should
change so as to say that someone found to have committed a crime but
to not be responsible because he was insane, was CONVICTED not
ACQUITTED. If it is found that he was insane, perhaps he should be
committed to a mental hospital instead of sent to prison, but it
doesn't seem reasonable to call the person innocent of the crime. If
he was truly innocent, he should be allowed to go free. But people
who commit serious crimes should NOT go free, so they should NOT be
found innocent.
Comments eagerly awaited.
...Keith
[ 'Fraud', as I understand it, is by 'consent', but with the one party
misrepresenting him/her/itself to the other. 'Fraud' without consent
is robbery, I thought... Also, I've always thought that "not guilty
by reason of insanity" was a judgement that the person had performed
the act, but was not 'responsible' for it (whatever that means) - not
"innocent". -CWM]
-------fair@UCBARPA.BERKELEY.EDU.UUCP (07/31/86)
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Date: Fri, 25 Jul 86 23:58:06 PDT
From: fair@ucbarpa.berkeley.edu (Erik E. Fair)
To: Hoffman.es@xerox.com
Subject: Re: Proposed amendment
Cc: JOSH@red.rutgers.edu, KIN%MX.LCS.MIT.EDU@mc.lcs.mit.edu
cc: Reges@su-score.arpa
What is your presumption about people who commit crimes? Are they:
to be rehabilitated (this assumes that anti-social acts are
acts of individuals who are not completely sane or normal by
the standards of the society, but that offenders are
potentially useful members of the society at large)
to be punished (this assumes that anti-social acts are acts of
responsible individuals who choose to be anti-social, and need
to be punished [which in itself is also intended as a further
deterrent if the offender is ever released from punishment])
For purposes of answering this question, do not assume the current
penal/correctional/mental-health system anywhere in the U.S.
Erik E. Fair ucbvax!fair fair@ucbarpa.berkeley.edu
-------rlk@ATHENA.MIT.EDU.UUCP (07/31/86)
Return-Path: <rlk@ATHENA.MIT.EDU> Date: Sat, 26 Jul 86 12:33:51 EDT From: Robert L. Krawitz <rlk@ATHENA.MIT.EDU> Sender: rlk@ATHENA.MIT.EDU To: fair@ucbarpa.berkeley.edu (Erik E. Fair) Cc: Hoffman.es@xerox.com, KFL%MX.LCS.MIT.EDU@mc.lcs.mit.edu, cc: JOSH@red.rutgers.edu, KIN%MX.LCS.MIT.EDU@mc.lcs.mit.edu, cc: Reges@su-score.arpa Subject: Re: Proposed amendment I'd say that you cana't make a blanket statement either way. Depends too much on the particular individual, the particular crime, etc. All circumstances have to be considered (not that I care to go into lots of detail here right now). Robert^Z -------
hoffman.es@XEROX.COM (08/05/86)
I prefer to keep constitutional amendments as simple as possible. How
about the following:
The United States and no state shall make any law pertaining
to private activities of informed, consenting persons.
Activities are deemed private unless involving a clear and
present danger to uninformed or non-consenting others.
This intentionally does not define "informed", "consenting", or
"person". I would like to think that our thoughts about these terms
are evolving and improving over time.
-- Rodney Hoffman
-------kfl%mx.lcs.mit.edu@MC.LCS.MIT.EDU (08/05/86)
I prefer to keep constitutional amendments as simple as possible.
How about the following:
The United States and no state shall make any law
pertaining to private activities of informed, consenting
persons. Activities are deemed private unless involving a
clear and present danger to uninformed or non-consenting
others.
This intentionally does not define "informed", "consenting", or
"person". I would like to think that our thoughts about these
terms are evolving and improving over time.
Lawyers and legislators manage to find invisible loopholes in the
most lucid prose. Look at how they have managed to interpert away the
second amendment!
The main problem is 'clear and present danger'. This can be used to
justify sodomy laws (to prevent spread of AIDS), drug laws (to prevent
people from harming others while they are on drugs and not able to
control their actions), prohibition of alcohol (on the same grounds as
drugs), and prohibition of pornography (on the grounds that it
(according to Meese) causes people to commit violent sex crimes).
'Informed' is another loophole. It can be argued that certain
actions are so irrational that the person performing them must
necessarily either be not informed or not sane.
Also, do you think people should be allowed to play very loud music
outdoors at 2 am? It certainly ruins a lot of people's sleep, but is
it a clear and present danger? What about shining spotlights into
people's windows at night? What about a peeping tom? What is the
clear and present danger there?
...Keith
-------hoffman.es@xerox.com (08/05/86)
I had proposed a trial wording for a privacy amendment:
The United States and no state shall make any law pertaining
to private activities of informed, consenting persons.
Activities are deemed private unless involving a clear and
present danger to uninformed or non-consenting others.
From: Keith Lynch
The main problem is 'clear and present danger'.
This can be used to justify sodomy laws (to
prevent spread of AIDS), drug laws (to prevent
people from harming others while they are on
drugs and not able to control their actions),...
and prohibition of pornography (on the grounds
that it (according to Meese) causes people to
commit violent sex crimes).
I completely disagree with your first objection. Any anti-sodomy law
would be unconstitutional under the proposed amendment insofar as it
pertained to informed and consenting parties. That is, if both
parties to sodomy are informed (including informed about AIDS) and
consent anyway, no law could touch them. On the other hand, it would
probably permit a law saying that both parties to consensual sodomy
would have to swear to being informed about AIDS risks. Well, I'd
allow that. I'm all for information!
As to drugs, I certainly do NOT intend to wipe out drunk driving laws,
for example. That is, I DO wish to "prevent people from harming
others while they are on drugs" to the extent that such harm is
reasonably forseeable. What I want to prohibit are laws against
private drug use, and I think the proposed amendment would do that.
As to porn, I love it. And I think any anti-porn laws should be
outlawed by the First Amendment. (Yes, I know the courts think
otherwise.) In any case, I definitely had such things in mind when I
used the "clear and present danger" phrase. I don't think the Meese
commission showed any such danger. They SAID there is a danger, but
they couldn't and can't back it up.
From: Keith Lynch
'Informed' is another loophole. It can be argued
that certain actions are so irrational that the person
performing them must necessarily either be not informed
or not sane.
Hmm. I would like to see the state forced to take my word for it if I
said I knew what I was doing, including facts about A, B, C, ..., and
Z. Now if they think I'm insane, that's a separate issue to be tried.
From: Keith Lynch
Also, do you think people should be allowed to play
very loud music outdoors at 2 am? ... What about
shining spotlights into people's windows at night?
What about a peeping tom?
No. No. What about one?
I think overly loud music forced upon me (at any time) IS a clear
danger to me. (Note that a club could have it, since I can enter and
leave as I wish.) Same about a spotlight. As for a peeping tom,
you're right, there could be no laws against one; what's the problem?
My amendment certainly doesn't prohibit laws against trespassing or
the like. If you wish to permit others on your property, but you
don't want them looking in your window, it's your responsibility to
use your curtains. If you don't want them on your property at all,
that's certainly your right.
-- Rodney Hoffman
-------kfl%mx.lcs.mit.edu@MC.LCS.MIT.EDU (08/10/86)
From: Hoffman.es@Xerox.COM
... witness the recent ruling that employers can
fire AIDS victims on the grounds that they are contagious.
You've already vehemently defended an employer's right to fire
anyone for any reason whatsoever, and, while not completely
agreeing with that, I've already conceded that hiring and firing
do not fall under any privacy rights amendment.
I was using that ruling simply to illustrate that it is the
government's position that AIDS is a danger to nonconsenting people.
I DO support an employer's right to terminate someone even for a silly
reason, just as I support an employee's right to resign even for a
silly reason. The government, however, does not. So it is clear that
they do not think that fear of casual exposure to AIDS victims is
unreasonable. And from that I conclude that they would hold that
someone having AIDS presents a clear and present danger to others, and
thus behaviors that make AIDS likely are not protected under your
proposed amendment.
That [Meese] commission's report has utterly no effect.
Legislation is required to put it to work, and THAT is what my
amendment would, I think, prohibit.
The Meese comission report comes to the conclusion that someone's
viewing pornography results in a clear and present danger to others.
Thus it would not be protected under your amendment. I still don't
see why it isn't protected under the FIRST Amendment! The First
Amendment is just as clear on the subject as yours.
I tend to think wiretapping and reading other people's mail would
remain generally illegal under the Fourth Amendment (forbidding
unreasonable search and seizure).
What about peeping? Your previous response implied that one could
only be a peeping tom on one's property. This is not true.
Binoculars can be used. And apartment dwellers do not own or control
the space immediately outside their windows in any case. If
binoculars are used to read private documents through someone's
window, does that constitute search and seizure? Nothing physical is
siezed, but the same is true when secret computer files are remotely
viewed. What if it is private behavior rather than private documents
that is viewed? Should the law recognize a difference?
This is not just paranoia. Where I work there is a rule that
windows must be blocked before sensitive documents can be exposed,
even though the only way to see desktops through the windows would be
from midair or outer space.
...Keith
-------hoffman.es@XEROX.COM (08/10/86)
To: "Keith F. Lynch" <KFL%MX.LCS.MIT.EDU@MC.LCS.MIT.EDU> I think most of your feared scenarios come from rather far-fetched interpretations of "danger". (Yes, I know the scenarios are not necessarily your own, but rather Meese's, for instance.) That's precisely why I put in "clear and present danger". As I said before, I don't believe judges and juries could be readily convinced that private, consensual sodomy presents a "clear and present danger" of AIDS to some other party, nor that private viewing of pornography presents such a danger. -- Rodney Hoffman -------
mcb%lll-tis.b.arpa@LLL-TIS-GW.ARPA (08/10/86)
Return-Path: <@lll-tis-a.ARPA:mcb%lll-tis-b.ARPA@lll-tis-gw.arpa> Date: Mon, 4 Aug 86 19:39:33 pdt From: Michael C. Berch <mcb%lll-tis-b.ARPA@lll-tis-gw.arpa> Subject: Re: Proposed amendment Reply-To: mcb%lll-tis-b.ARPA@lll-tis-gw.arpa (Michael C. Berch) [Keith F. Lynch's proposed noncoercive acitvities amendment...] > . . . > > Every person who is at least 21 years of age shall be presumed > to be capable of voluntary consent, unless he has voluntarily > declared himself incompetent, or has been declared incompetent > by a court of law after having been convicted of a crime. The > period of incompetency declared by a court shall not exceed the > maximum sentence allowed for the crime he was convicted of. I'm with you most of the way, but I'm wondering about the sort of cases where: 1. X is dangerously crazy, presents a clear and immediate danger of committing a violent crime, but has not yet committed the crime. If there is no civil committment or temporary detention for being "a danger to society or oneself", what is to be done? Private action seems reasonable, but might unreasonably expose a quick thinking bystander to liability. 2. X commits a crime while insane, pleads "guilty but insane" (or whatever), and after his statutory period of incompetence is still dangerously crazy. Should he be let out? If so, are the authorities then liable for his subsequent acts? I worry less about the civil impediments of incompetence (lack of capacity to contract, consent to risks, etc.) than about dangerously crazy people wandering around since the state has no right to protect them "from themselves." Is there a way around this? Michael C. Berch ARPA: mcb@lll-tis-b.ARPA UUCP: {ihnp4,dual,sun}!lll-lcc!styx!mcb -------