>>> "Lisa & Ian Murray" <seamus at accessone.com> 02/19/00 01:27PM >>>
Charles,
Many thanks for your comments.
CB: There is a Constitutional provision barring the feds/states from impairing the rights of contracts, so the govt. can't interfere with the employment contract might be another argument.
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So where's the bar to self-enslavement contracts and vote selling, prostitution, drugs etc. come from as these can be considered "welfare enhancing" under neoliberal econ.?
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CB: The Constitution is not the only basis for prohibiting something. The whole of the criminal law is in statutes, not the Constitution. As a general comment, a contract that has as a subject an illegal/criminal activity is unenforceable.
Actually, the 13th Amendment makes slavery illegal. It doesn't declare it criminal. But, if A enters into a contract with B for "self-enslavement" , as you put it, the contract would be unenforceable in a court because of the 13th Amendment. In other words, a contract question only arises if one of the parties decides to break the contract. So, if A just works for free for B, nothing happens. A has not committed a crime ( there may be some specific anti-slavery criminal statutes that I am unaware of in which case it would be a crime; but the contract analysis here is correct anyway).
I am not actually sure if there is a criminal statute against vote selling. One issue might be, how does the person know you voted for whom you said you did. But leaving that aside and assuming you could find out...However, I don't think a contract to sell a vote would be enforceable in court, though I can't think or don't know a specific statute that would make the subject of the contract illegal or criminal.
There are definitely specific criminal statutes against drugs and prostitution. Their prohibition is not in the Constitution. But the general Welfare clause of the Constitution's Preamble does not make these criminal statues unconstitutional, if that is your reference to "welfare". The general Welfare clause of the Preamble is not interpreted as giving rise to any specific or enforceable right, unfortunately, though I wouldn't want to analysis it according to neolib econ theory if it was so interpreted.
********* CB: CB: Equal protection does not apply to private parties. There must be state action.
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Why? Isn't it state action to say EP doesn't apply?
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CB: Yes, it would be a court , part of the state, saying EP doesn't apply, but the court is not a party in the suit it is declaring on; and the rule is that a court can never be sued (in a separate , other suit) for decisions it makes. So there is no EP action against the court, or more precisely certainly the court's decision does not give the basis for state action in the cause of action against the private party we are assuming here.
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It seems, following Diane Elson's great essay in the latest Socialist Register collection, that this is one of those fissures we should be pressing against in an accessible way to the younger wage slaves...
BTW Elson's work is great to read alongside David Ellerman's critique of capitalist employment theory as a violation of democratic theory.
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CB: I happen to have respect for Elson because of an article "Socialization of the Market" in 172 New Left Review. Did I mention that ?
I have a paper on "Constitutional Amendment for a Right to a job with a decent wage", if you want a copy. Maybe I hit some of the same fissures.
CB