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Question: Does a natural right to contract exist?
yes - 12 (63.2%)
no - 3 (15.8%)
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Author Topic: Is bitcoin protected by the USConstitution under the 'right to contract' clause?  (Read 6540 times)
btcnoodle (OP)
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April 07, 2012, 04:37:29 AM
 #1

So, I looked over everything on that subject and didn't see anything directly related to my question. I set up a blog recently to focus on this and a few other btc related issues I'm thinking about. Here's a copy of my post on the subject. If I'm wrong, tell me how so I have a chance to think about it. If your point makes no sense I won't be responding. Thanks in advance.
--------------------------------------------
On the Legal Implications of Bitcoin
One of the biggest questions surrounding bitcoin acceptance is the supposed murky area of it's legal status. I say "supposed" because it seems to me there is a faulty assumption that since it's a new thing there must not be any regulations that take it into account accurately. Thus, assumed murkiness. At least in the case of the United States I think there may in fact be a clear definition that has been ignored. I would like to open a public discussion specifically on the legal issues as I think acceptance is dependent upon such. This is not to be confused with legal advice, which should obviously come from a lawyer. The public certainly has a right to discuss the possibilities and so please, let me know your thoughts on the subject.

That being said here are a few things I've come across in my research so far:

The US Constitution seems to provide for a "right to contract" which would include bitcoin. Here's an excerpt from Wikipedia that provides more detail (emphasis added);

https://en.wikipedia.org/wiki/Contract_Clause

"The Contract Clause appears in the United States Constitution, Article I, section 10, clause 1. It states:

    No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility"

The entry further states:
"The Framers of the Constitution added this clause in response to the fear that states would continue a practice that had been widespread under the Articles of Confederation—that of granting "private relief." Legislatures would pass bills relieving particular persons (predictably, influential persons) of their obligation to pay their debts. It was this phenomenon that also prompted the framers to make bankruptcy law the province of the federal government."

So, this was a prohibition against the states to keep the private right to contract intact. There is no such prohibition against the federal government because there doesn't need to be. There is no authority granted to the federal government to restrict, alter or abolish contracts and the tenth amendment clearly states that unless the authority is explicitly granted then the feds can't touch it.

Now, I'm no Polly Anna. I'm aware of the long history of the abuse of the Commerce Clause, and I'm also aware that the power to COIN money is granted to the congress. I think neither of these two issues apply to bitcoin as a right to contract as the Commerce Clause was clearly intended (unless you're really into revisionist history) to regulate commerce DISPUTES between the states only and the coining of money clause merely says the federal government is authorized to do so and in NO WAY prohibits private citizens from their right to contract. Any regulations, accounting rules, executive orders or even laws DO NOT over rule the Constitution and therefore would be of no legal force. Any instances of force being used to interfere with the right to contract would be done under the color of law and would in fact be subject to criminal penalties. Furthermore, any legal standing the Congress may have in this matter has been forfeited due to the fact they have illegally abrogated their duty to issue the money by transferring their authority to a private corporation. This is an important point. NO branch of the US federal government may (morally or legally) abrogate their duties to any other branch of government nor any other entity.

So, I don't have to be right on all the details here, the fundamental point is whether or not the right to contract exists. If it does then trading with bitcoins is in fact a constitutionally protected right. Given the long history of abuse by the establishment under color of law you can expect there to be pro-tyranny views expressed. During my research I also came across a really good article examining the right to contract from the perspective of prostitution.

Here: http://www.buildfreedom.com/tl/wua2.shtml

Some good points the article made:
"Prostitution is never mentioned in the Constitution. I believe the following stipulations of the Constitution are relevant here:

    Article I, Section 10: "No State shall pass any law impairing the obligation of contracts."
    Article VI: "This Constitution, and the laws of the United States... shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the Constitution or laws of any State to the contrary notwithstanding... All executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution."
    Amendment IX: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
    Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
    Amendment XIII, Section 1: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

A central issue is whether a person owns his or her body. For the government or state to own our bodies would be slavery. But the Thirteenth Amendment abolished slavery. Clearly, this means that we as individuals own our bodies, not the state or government.
Article I, Section 10 effectively guarantees the right to contract and prohibits any State from passing any law that impairs this right. It seems to me that a person who owns his or her body has the right to "contract out" the use of that body for the pleasure of another - provided no rights are violated.
There is also a Common Law principle which states that for there to be a crime, there has to be a victim (corpus delecti). In the absence of a victim there can be no crime."

And it makes a very strong closing point with this (emphasis added):

"A famous court case indicates how the Constitution was understood at one time:
"The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights." Hale v. Henkel, 201 U.S. 43 at 47 (1906).

Does the idea that the government has the power to interfere with the voluntary sexual activities of individuals imply that citizens are "state property" and that the U.S. Constitution in practice means nothing?"

So, there are many court cases on this subject I'm sure. I think it is important to take into account the supremacy issue in this regard as anything less than a constitutional amendment may be irrelevant. The legal definitions are important at least to the extent that people can morally embrace what they have been told is somehow wrong. I believe there IS an unalienable right to contract. This is evident in nature and to anyone with common sense. The framers of the Constitution actually seem to have gone out of their way to protect it. In India monkeys roam the streets unmolested due to the reverence for the monkey God Hanuman. They have learned to steal shiny things from tourists and then trade it for a piece of fruit with one of the many street vendors. Does this not provide evidence that the right to contract is a natural right? Will the monkeys end up with more rights than humanity?

Please chime in if you have even the slightest interest. I hope the topic gains more clarity and will do my best to respond to any input, critical or otherwise.
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April 07, 2012, 06:58:11 AM
 #2

I don't think it's realistic to think of Bitcoin as a contract.

Regardless, yes you have a right to trade.  That is outside the purview of the commerce clause.  And you have a right to contract, within certain limits.

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April 07, 2012, 09:40:00 AM
 #3

No, the day they will notice bitcoin harms their interest then it will become the currency of terrorists and thus made illegal. After all if you are a honest person you use dollars!

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April 07, 2012, 11:57:24 AM
 #4

I think you've done some good research.  Hopefully, a lawyer has time to opine.  Until then, here are my thoughts:

1) I don't think we need any more references to prostitution, and I'm not sure why your description started discussing whether the states own us.

2) The constitution is an old piece of paper that has many amendments (which looks like you've combed through) and many interpretations over the years.  One next step may be to review cases to see where courts have given rulings on related matters.

3) Maybe look at what laws/regulations/constitution give the power to the Federal Reserve to issue dollars and for them to be deemed legal tender.

The person who posted about how the government will consider people who use dollars are "honest" while people using bitcoins are terrorists may be how congress positions it to suit their owns needs.

We won't know until some court cases start issuing rulings or if congress is approached for laws/regulations.  Then your research will be used and our questions will start to get answered.

ciao

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btcnoodle (OP)
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April 07, 2012, 12:20:05 PM
 #5

I don't think it's realistic to think of Bitcoin as a contract.

Regardless, yes you have a right to trade.  That is outside the purview of the commerce clause.  And you have a right to contract, within certain limits.

I don't think bitcoin itself is a contract, but using it between private parties would be. Also, your statement that it is subject to certain limits is wrong according to this court ruling (in my original post):
"The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights." Hale v. Henkel, 201 U.S. 43 at 47'
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April 07, 2012, 12:24:00 PM
 #6

No, the day they will notice bitcoin harms their interest then it will become the currency of terrorists and thus made illegal. After all if you are a honest person you use dollars!

I disagree. What you're really saying is it doesn't matter if it's legal or not, if someone wants to take away your rights you will just let them. If there IS a natural right to contract, protected under the constitution then nothing short of a constitutional amendment could make it illegal. If any one tries to deny that right it is they who are the criminal, and subject to the law as such. You shouldn't be so willing to let someone run you over just because you think they have some divine right to rule.
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April 07, 2012, 12:43:04 PM
 #7

I think you've done some good research.  Hopefully, a lawyer has time to opine.  Until then, here are my thoughts:

1) I don't think we need any more references to prostitution, and I'm not sure why your description started discussing whether the states own us.

2) The constitution is an old piece of paper that has many amendments (which looks like you've combed through) and many interpretations over the years.  One next step may be to review cases to see where courts have given rulings on related matters.

3) Maybe look at what laws/regulations/constitution give the power to the Federal Reserve to issue dollars and for them to be deemed legal tender.

The person who posted about how the government will consider people who use dollars are "honest" while people using bitcoins are terrorists may be how congress positions it to suit their owns needs.

We won't know until some court cases start issuing rulings or if congress is approached for laws/regulations.  Then your research will be used and our questions will start to get answered.

ciao

1) The reference to prostitution was from the article I quoted. The author of that stated he did not support prostitution but was using it as a hypothetical to discuss the issue of right to contract. I don't support prostitution either but I do support the idea that if people want to do that it's not my decision. Given the media perceptions of bitcoin vis a vis the illegal market however I do get your point.

2) Again, nothing short of a constitutional amendment repealing the right to contract could change the original intent, which was clearly to give the people the right to contract with no third party involved, especially the govt. This is a key point however and the input of some real constitutional lawyers would be great. A very important point is that if it's true that this falls under a constitutional protection than all other 'legislation' is moot.

3) The situation with the fed reserve is purely unconstitutional, illegal and immoral, as has been stated by many before me. Just because they still get away with it provides no legal legitimacy. The supreme court has ruled that no branch of govt may abrogate it's duties. So, the congress acted in an illegal manner when it transferred this authority to a private entity. Furthermore, as outlined in the tenth amendment just because the congress was given the authority to COIN money doesn't mean there are restrictions placed on the people. This only grants an authority to the congress, does NOT declare it a monopoly in any way and in NO WAY creates a limitation on the people. Technically, it is the fed reserve who is counterfeiting as the constitution clearly states that money will be coin. Nothing about scrip in there.

I know that reality and the law may not be in concert but the point I'm trying to get at is what is it's legal status. After that is established then we can ask the question 'what do I do about a criminal cartel imposing it's will on everyone through force and coercion'. Oh wait, that's what bitcoin answers....cool.
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April 07, 2012, 12:51:02 PM
 #8

Who cares?

USA != THE WORLD
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April 07, 2012, 12:55:41 PM
 #9

Who cares?

USA != THE WORLD
Not trying to be US centric per se. It's just that if we want to start getting answers to the legal questions it must be discussed in the context of legal jurisdictions. Since the US central banking system will likely be the biggest opponent of bitcoin adoption it seems strategically important to establish legal use in the US. If that could be done it would go a loooong way towards adoption globally.
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April 07, 2012, 01:05:35 PM
 #10

Legality will only hinder progress and research.
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April 07, 2012, 01:13:45 PM
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Legality will only hinder progress and research.
I don't think this can be said as a foregone conclusion. While I do understand your point there must come a time when bitcoin can be used for transactions in the light of day. Unless you want it to be forever relegated to the underworld the legal issues must be addressed. Another important distinction is that establishing legality doesn't necessarily equate to seeking permission. If my premise is correct then it is merely a matter of asserting your unalienable right, nothing to do with conforming to some man-made construct. The legal status I'm proposing would have been in effect before bitcoin was even invented therefore would have no effect on progress. I think your point is more about timing. If you want to say it's premature to start discussing the legal issues I'm going to have to respectfully disagree.
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April 07, 2012, 02:42:01 PM
 #12

The US Constitution was an experiment. It failed. It's time for a (bloodless this time) revolution. Bitcoin is the shot heard 'round the world. There will be a new world order, but not one forced upon We the People, but by science and reason.

Any significantly advanced cryptocurrency is indistinguishable from Ponzi Tulips.
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April 07, 2012, 03:12:09 PM
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The US Constitution was an experiment. It failed. It's time for a (bloodless this time) revolution. Bitcoin is the shot heard 'round the world. There will be a new world order, but not one forced upon We the People, but by science and reason.
My intent with this thread was to explore the questions:

1) Is bitcoin protected by the US Constitution under the 'right to contract' clause?

2) What are the implications of the answer to question 1 relative to bitcoin

Your response does not address these questions and is highly subjective. It is also factually incorrect as evidenced by the letter sent from the Justice Department to the Federal courts recently regarding the authority of the courts relative to the executive branch. Were you aware that the constitution also provides for a series of bloodless revolutions? You espouse reason and then dismiss my premise by ad hominem attack. I challenge you to demonstrate your understanding of reason by refuting any of the points I've made with an actual rebuttal.
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April 07, 2012, 03:26:22 PM
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The US Constitution was an experiment. It failed. It's time for a (bloodless this time) revolution. Bitcoin is the shot heard 'round the world. There will be a new world order, but not one forced upon We the People, but by science and reason.
My intent with this thread was to explore the questions:

1) Is bitcoin protected by the US Constitution under the 'right to contract' clause?

2) What are the implications of the answer to question 1 relative to bitcoin

Your response does not address these questions and is highly subjective. It is also factually incorrect as evidenced by the letter sent from the Justice Department to the Federal courts recently regarding the authority of the courts relative to the executive branch. Were you aware that the constitution also provides for a series of bloodless revolutions? You espouse reason and then dismiss my premise by ad hominem attack. I challenge you to demonstrate your understanding of reason by refuting any of the points I've made with an actual rebuttal.
Your point is well made. Now try to stop the US Government from simply ignoring the US Constitution as they do so frequently. My ad hominem is not directed at you, but to the entire legal industry that produces greedy, socially bankrupt attorneys.

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April 07, 2012, 04:08:33 PM
Last edit: April 07, 2012, 04:30:27 PM by btcnoodle
 #15

The US Constitution was an experiment. It failed. It's time for a (bloodless this time) revolution. Bitcoin is the shot heard 'round the world. There will be a new world order, but not one forced upon We the People, but by science and reason.
My intent with this thread was to explore the questions:

1) Is bitcoin protected by the US Constitution under the 'right to contract' clause?

2) What are the implications of the answer to question 1 relative to bitcoin

Your response does not address these questions and is highly subjective. It is also factually incorrect as evidenced by the letter sent from the Justice Department to the Federal courts recently regarding the authority of the courts relative to the executive branch. Were you aware that the constitution also provides for a series of bloodless revolutions? You espouse reason and then dismiss my premise by ad hominem attack. I challenge you to demonstrate your understanding of reason by refuting any of the points I've made with an actual rebuttal.
Your point is well made. Now try to stop the US Government from simply ignoring the US Constitution as they do so frequently. My ad hominem is not directed at you, but to the entire legal industry that produces greedy, socially bankrupt attorneys.

These are important points for sure. Here's where for me it starts to get really interesting. Ask yourself how is it that this pattern of government over-reach has emerged? How did it (the state) become this leviathan extending it's tentacles into every aspect of your life? The answer is simple, control of the monetary system to allow fiat currency (petro-dollar). Thus it seems simple to me that to take that away would remove the ability for deficit spending and reign in foreign imperialism and usher in a new age of personal liberty. Do I need to elaborate on the positive effects globally if we didn't have to deal with a state of permanent war? I believe bitcoin has emerged as a spontaneously ordered system essentially as a rejection of the old order in favor of the 'new order' much as you described. The history of controversy over central banking goes all the way back to the start of the country and I feel bitcoin has just become the next chapter in the total history of monetary systems. The difference this time is that the technical means to deny arbitrary and imposed controls over the individual control of your money exists. That's the truly unique aspect of bitcoin. It's the first to actually achieve (so far) technical independence of the old order. So I think any attempts to go after bitcoin in the US will run afoul of the principles I'm talking about here. If people know it's not illegal it changes the equation when they think about using it in their daily lives. The question of legality is important in that regard. One thing I know for sure is that generally in life you are solely responsible for the defense of your rights. You certainly don't want to wait for a banker to do it for you. If bitcoin is attacked in a legal arena it would behoove the community to have some thoughts on the matter.

While understanding that what the law actually says and what happens in the real world may be different, I do not believe in abandoning a morally and legally sound position due to threat of force. This is coercion. If you have a right and someone conspires to deny or disparage that right it is they who are in the wrong. It is a fools bargain to think that by allowing yourself to be run over roughshod by any bandits that come along that they will show you mercy and give you a position of elevated privilege. So, I want to first establish the legal reasoning so that when the time comes that bandits ride in to plunder under color of law we are not caught with blank stares.
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April 07, 2012, 10:34:12 PM
 #16

Hopefully, a lawyer has time to opine.

Lawyers don't opine.  They follow the law.  The US is a common law jurisdiction.  We make the laws ourselves.

"The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights." Hale v. Henkel, 201 U.S. 43 at 47'

That's a good quote.  I simply meant that one's right to contract, while unlimited in the ideal sense, is practically limited.  There are plenty of limits regarding, eg. implied contracts, contracts with minors, interpretation, consensus and enforcement, etc.  Contracting is not an individual right.  So it is limited in that sense.

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April 08, 2012, 08:55:18 PM
 #17

Hopefully, a lawyer has time to opine.

Lawyers don't opine.  They follow the law.  The US is a common law jurisdiction.  We make the laws ourselves.

"The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights." Hale v. Henkel, 201 U.S. 43 at 47'

That's a good quote.  I simply meant that one's right to contract, while unlimited in the ideal sense, is practically limited.  There are plenty of limits regarding, eg. implied contracts, contracts with minors, interpretation, consensus and enforcement, etc.  Contracting is not an individual right.  So it is limited in that sense.

Such limits upon the right to contract, if possible would have to take place at the state level as there's no federal authority but they (the states) are clearly prohibited from doing so. The feds MUST be able to point to where in the constitution they derive the authority for any legislation. The burden of proof is on the fedgov, not the people. I disagree that the right to contract is not an individual right. Are you saying the right to contract is a collective right? I'm wondering how you took the court ruling which says 'individual may stand upon....right to contract is unlimited' and turned that around to it being a limited collective right which in fact is the exact opposite of what it says?
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April 08, 2012, 09:09:43 PM
 #18

Right now the question is:

Is trading a Mathematical formula legal?  A place holder in a shared abstract world.

The best that any deterrers could do is make it difficult to do, illegal or not.

But if it is against the constitution, I would make it under the: Life, liberty and the pursuit of happiness clause.


Quote
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety

Particularly under: acquiring and possessing property - because if stoping a person from acquiring an abstract piece of property is legal, then the 'state' controls our thoughts and ideas.

And:

obtaining happiness and safety - 'safety' of ones monetary wealth is a right. If not, then people transferring to Gold from fiat is also illegal as it is also a form of monetary safety to protect ones wealth.



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btcnoodle (OP)
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April 08, 2012, 10:22:33 PM
 #19

Right now the question is:

Is trading a Mathematical formula legal?  A place holder in a shared abstract world.

The best that any deterrers could do is make it difficult to do, illegal or not.

But if it is against the constitution, I would make it under the: Life, liberty and the pursuit of happiness clause.


Quote
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety

Particularly under: acquiring and possessing property - because if stoping a person from acquiring an abstract piece of property is legal, then the 'state' controls our thoughts and ideas.

And:

obtaining happiness and safety - 'safety' of ones monetary wealth is a right. If not, then people transferring to Gold from fiat is also illegal as it is also a form of monetary safety to protect ones wealth.



For me the important questions are:

1) Is there a natural right to contract?
2) Is bitcoin protected by the USConstitution under the 'right to contract' clause?

As to the document you quoted, that's from the State of Virginia Declaration of Rights, not the US Constitution. Perhaps you meant the US Declaration of Independence? Only the Constitution has legal force. The Declaration of Independence and the state constitutions are relevant only in regards to historical context, understanding the intent of the law giver, language of the day, etc. In order to keep the issue limited to the questions above I'm going to try and research a very narrow line of reasoning. I already feel that the answers to both of my questions are yes. I think it's a good idea to do a lot more digging into relevant past cases. When the authorities tried to shut down bittorent, napster, etc. they used a legal basis involving copyright law. This gave them a supposed reason to pursue legal action. In the case of bitcoin what would their legal case be? If I'm right then they would have no legal basis. If there ever is a court case they must declare why the fedgov is arbitrarily denying citizens their rights on a massive scale and it just wouldn't fly. This is not the 1910's any more. There's much more scrutiny now and the old tricks no longer work. This time they will be met by multitudes of everyday people calling them out on their BS.
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April 08, 2012, 10:45:51 PM
 #20

1) Is there a natural right to contract?

I would have to rephrase the question then:

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

This would then bring in the question of legalities of the contract. Yes two people can agree to something, but that agreement may not be enforceable. Hence, if BTC is determined illegal, it will be like 'drug dealing contracts'.

The first question is:

Is BTC legal to trade for other items?

I find this a ridiculous proposition. If people want to trade dirt, who am I to disagree. If they want to trade and abstract item, then again, who am I to disagree. The government cares because taking 30% of the Dirt Pile is a problem. Taking 30% of an abstract item is even more of a problem.

However, the Interstate Commerce Clause will be used to the greatest detriment for BTC. The problem being enforcement. This is why development needs to be watched very closely. This is where the attack to the system will come from in my opinion.

If BTC becomes a threat, I do believe the government will try to take it over. It is imperative that these systems remain as decentralized as possible.

In the end, I see governments world wide switching to a sales tax on real world items. It will be tiered from raw material to the final product purchase.

Legal implies an enforceable concept. If a concept is not enforceable, legality becomes moot.

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