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Question: Does a natural right to contract exist?
yes - 11 (61.1%)
no - 3 (16.7%)
not sure - 4 (22.2%)
Total Voters: 18

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Author Topic: Is bitcoin protected by the USConstitution under the 'right to contract' clause?  (Read 6100 times)
benjamindees
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April 09, 2012, 01:40:34 AM
 #21

Such limits upon the right to contract, if possible would have to take place at the state level

Even in the complete absence of a state, natural rights can be limited.  Your right to reproduce, for instance, has some limits.

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I disagree that the right to contract is not an individual right.
Are you saying the right to contract is a collective right?

Are you in the habit of contracting with yourself?

Civil Liberty Through Complex Mathematics
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JDBound
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April 10, 2012, 12:37:23 AM
 #22

Generally:

The contract clause and the reading of a natural right of freedom to contract into the constitution has been all but done away with since the 'Lochner era' (http://www.amazon.com/Rehabilitating-Lochner-Defending-Individual-Progressive/dp/0226043533). This is an unfortunate set of circumstances. However, all indications are that this court is not interested in reviving it (nor will it likely have the opportunity to do so) in the near future.

There are many other legal concepts that have more immediate impacts on Bitcoin.

Edit: Lochner and ACA (http://volokh.com/2012/04/09/the-washington-post-on-lochner-and-the-aca/)
btcnoodle
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April 10, 2012, 12:21:15 PM
 #23

"I would have to rephrase the question then:

Is there a natural right to an enforceable contract under law?"

Answer: No, the primal right to contract is buyer beware/vendor beware. It's also a logical impossibility since the natural right exists before the law, hence there can be no right to protection of the law. I think it's important not to confuse rights with privileges.

"Such limits upon the right to contract, if possible would have to take place at the state level

Even in the complete absence of a state, natural rights can be limited.  Your right to reproduce, for instance, has some limits.
"
Comment: Here I mean states as opposed to the fedgov, not the generic 'state' as in nation-state.

"I disagree that the right to contract is not an individual right.
Are you saying the right to contract is a collective right?

Are you in the habit of contracting with yourself?"

The idea of collective rights is a pure fiction. There is no such thing. There are collective privileges but a natural right can not possibly be collective as to remove the individual from the society would be to remove the so-called collective right. The very definition of unalienable (aka natural) rights is a right which can not be removed from the individual. Therefore, if a right can be removed from an individual by removing them from society it is not unalienable. Hence, it is logically impossible for collective rights to exist. It has long been considered by the courts (and recently acknowledged by the Supreme Court) that all rights are inherently individual. The idea of collective rights is a dishonest attempt to enslave most people for the benefits of a few. I challenge you to show me ONE piece of evidence from the US constitution to support your idea that rights are collective.

You are engaging in a logical fallacy to say that because you can't contract with yourself that the right to contract MUST be a collective right. First of all, you can and often do contract with yourself. A new year's eve resolution is just one example. Second, if you apply your thinking to the first amendment does the fact that you generally need someone else to carry on a conversation mean that the right to free speech is a collective right? Obviously not and we also talk to ourselves sometimes, yes?
btcnoodle
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April 10, 2012, 12:36:08 PM
 #24

Generally:

The contract clause and the reading of a natural right of freedom to contract into the constitution has been all but done away with since the 'Lochner era' (http://www.amazon.com/Rehabilitating-Lochner-Defending-Individual-Progressive/dp/0226043533). This is an unfortunate set of circumstances. However, all indications are that this court is not interested in reviving it (nor will it likely have the opportunity to do so) in the near future.

There are many other legal concepts that have more immediate impacts on Bitcoin.

Edit: Lochner and ACA (http://volokh.com/2012/04/09/the-washington-post-on-lochner-and-the-aca/)

This is the most substantial input yet I think. Thanks for the info. I'm going to be reviewing the case you mentioned and try to get a better context of how we got to the current interpretation. A cursory glance at society will tell you things are out of balance from the original intent so I guess we should be asking ourselves how a restoration can be brought about. One quick comment on the issue of the commerce clause as was pointed out by BTC_Bear;

The courts have said that the constitution can't contradict itself. This means that if something is added that is in conflict with something that was already there then the last thing to be added is invalid. This is why the income tax is 'voluntary'. Otherwise it would be in conflict with the right to contract clause. The authors of the income tax openly discussed this point and had to put in the voluntary thing even though they preferred it to be compulsory. If it's voluntary then an individual can 'choose' to engage in the contract or not. In the case of the commerce clause it is unreasonable to think that it would have been intended to remove the individual right to contract as enumerated in article 1 section 10. Furthermore there is ample historical evidence that it was intended to regulate disputes between the states only, no effect on the individual right to contract.

An important point I want to make before I sign off; I'm aware that the pure interpretations may not jive with the reality of today. I am still focused on the moral fundamentals as the basis of law and would like to see things restored to the point that govt protects the rights of the individual instead of plundering everything under color of law. The first step in knowing where you are going is to know where you stand.

Thanks to everyone that has commented, all input is valuable. I'm going to take a break from responding for a while so I can do some more digging. I'll be back once I have more information that is useful.
benjamindees
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April 11, 2012, 07:06:40 AM
 #25

In the case of the commerce clause it is unreasonable to think that it would have been intended to remove the individual right to contract as enumerated in article 1 section 10. Furthermore there is ample historical evidence that it was intended to regulate disputes between the states only, no effect on the individual right to contract.

Let's just say this.  You have an unlimited, individual right to contract.  Okay.  You can sign yourself into slavery if you'd like.  But your right to enforce a contract is limited by the rights of the co-party.  And the right to liberty is more fundamental than the right to slavery contracts.  So your slavery contract can be broken.

And this is completely aside from any "law impairing the obligation of contracts."  It is a matter of rights, which supercede both law and contracts, even the Constitution.

As a side note, I think it is useful to consider the distinction between commerce and trade in framing the limits to the right to contract, especially with regard to Bitcoin.

Civil Liberty Through Complex Mathematics
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April 11, 2012, 03:34:28 PM
 #26

tl; dr

Right to contract is low on the list vis-a-vis bitcoin. Much higher on the list, IMO:

1st Am. Free Speech

4th Am. 5th Am. 6th Am. Information Privacy

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btcnoodle
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April 13, 2012, 02:23:00 PM
 #27

Ok, after doing a little more research I came across exactly the sort of detail I was looking for. At first I thought I would start poring through case histories but decided I would likely be reinventing the wheel. What I realized was that it would be great if I could find a respected constitutional expert discussing the relevant points versus having to examine 200 plus years of court history. So I started thinking who that expert might be and for me there's one person who stands above the rest, Dr. Edwin Vieira Jr. Within a half an hour of having this thought I was watching this video, uploaded on the 9th of April:

http://www.youtube.com/watch?v=1mI8Lek60_w&feature=relmfu

Here are some specific points he makes relative to this discussion;

2:44 "the plan is basically an attempt to create an alternative competitive currency so that you will have federal reserve currency continuing to circulate to the extent that it will, but on the other hand people can use an alternative"

3:15 "on the other hand an average person could certainly use an alternative currency because in the united stated federal reserve notes are not required to be used as money"

3:50 "most people don't however (use alternative currencies) because there's a lack of knowledge of the existence of that alternative"

4:00 "the third (Congress being the first, the people being the second) alternative is the middle level which is the state government"

10:05 "in point of fact federal reserve notes do not have to be accepted if you've made your contract payable in some other medium of exchange. And in fact the federal title 31 of the United States code that you just mentioned has a provision section 5118 dii which specifies that"

12:29 "so if the state chooses to use some alternative currency for those purposes (state collections) the supreme court has already said that's protected by the constitution"

34:39 "the state has the constitutional power to do it (adopt alternative currencies), the state has the duty to perform this function"


So, for me the issue is well settled. There IS a right to use bitcoin in the US both at the individual and state levels. Dr. Vieira suggests an emphasis on the state level approach because he feels there is no mechanism to implement it at the individual level. I think he may be unaware of bitcoin as it does provide this individual mechanism. Taking that additional detail into account I'm going to agree with everything he says but add that while approaching the issue at the state level is a good approach that we could augment our efforts with bitcoin at the personal level. Both if these working together will increase the chance of adoption. If anyone disagrees with his assessment you'll have to take it up with him and the court of public opinion. Thanks again for all the input.
benjamindees
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April 15, 2012, 09:58:13 AM
 #28

Interesting find.

By his argument, a state could adopt Bitcoin without making it legal tender.  That's not controversial.  Even in this economy, states (even small states*) control vast discretionary funds.  So even if you ignore his suggestion to collect taxes in an alternative currency, this could be huge.  I've been suggesting for almost a year now that this is exactly what Bitcoin needs -- local economy.  And it's clear that in the very near future, states may be in dire need of an alternative like Bitcoin.

Right now, though, a small state without a large dependence on the Federal Reserve System could generate local economic growth merely by paying some percentage of contracts and salaries in Bitcoins.  Even if the Bitcoins don't remain and circulate in the local economy, the effect of rescuing a small part of the local economy from the FED's money-printing, and attaching it to an alternative currency instead would be extremely beneficial.

The problem with this plan, unfortunately, is that Bitcoin is not the best choice.  Bitcoin requires some investment in transaction processing equipment to be a good local alternative.  His suggestion of centralized gold-backed accounts is easier to implement at the moment, though still not without it's own issues.  An electronic state currency system based on mag-stripe cards would have all of the fraud-risk of a credit card, with none of the economies of scale.  Smart cards would be more expensive, and would necessitate investment in point-of-sale readers.  But the benefits of bridging that hurdle could be huge, and would open the door to Bitcoin as well.

*New Hampshire, for instance, in 2006 generated annual revenue at the state level of 3.7 billion dollars.

Civil Liberty Through Complex Mathematics
deus-ex-machina
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April 18, 2012, 12:25:42 AM
 #29

Just stop calling it a currency. Now it is a "resource". There. Technically it's just bartering now and no law is broken.
benjamindees
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April 18, 2012, 11:03:59 AM
 #30

Just stop calling it a currency. Now it is a "resource". There. Technically it's just bartering now and no law is broken.

It is technically trade, but that's all currencies are as well and there's no law against alternative currencies anyways.

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btcnoodle
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April 22, 2012, 03:34:05 PM
 #31

Just stop calling it a currency. Now it is a "resource". There. Technically it's just bartering now and no law is broken.

It is technically trade, but that's all currencies are as well and there's no law against alternative currencies anyways.

Agreed, it does come down to the legality of alternative currencies. My original question regarding the contract clause is a less effective approach given the Lochner case as mentioned earlier in the thread. As Dr. Vieira points out clearly alternative currencies certainly are legal in the US. In the video he mentions several efforts at the state level, including Utah. It seems like they just recently passed a new law very much along the lines of what was discussed in the video;

Utah Now Accepts Gold and Silver
http://www.insidefutures.com/article/596887/Utah%20Now%20Accepts%20Gold%20and%20Silver%20.html

Pretty big news actually.
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April 22, 2012, 04:04:14 PM
 #32

Pretty big news actually.
If you say so. It addresses a problem that doesn't exist. This law will not affect Bitcoin in any way.

Any significantly advanced cryptocurrency is indistinguishable from Ponzi Tulips.
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