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Does the Equal Protection clause of the 14th amendment apply to laws that affect businesses? If so, then these kinds of perks may be illegal. But I suspect th

Does the Equal Protection clause of the 14th amendment apply to laws that affect businesses? If so, then these kinds of perks may be illegal. But I suspect that equal protection only applies to humans. Lawyers?

dragonwriter 8y ago
> Does the Equal Protection clause of the 14th amendment apply to laws that affect businesses? Yes. > If so, then these kinds of perks may be illegal. Probably not; except for subject matter subject to strict or intermediate scrutiny, unequal treatment that has a rational relationship to a legitimate government function (which is quite broad for state governments, as they have general competence rather than limited purposes for federal Constitutional purposes) is allowed.
krrrh 8y ago
Hayek proposed a new amendment that would state, “Congress shall make no law authorizing government to take any discriminatory measures of coercion.” [1] Which would help end this sort of structural corruption. Corporate welfare is one of the plainest examples of the state using its power to transfer wealth from the general population to the ablest and wealthiest among us. It’s immoral at a fundamental level, and as stated in TFA, corrupting the economy and society in this manner is a bipartisan practice. [1] http://alex.kozinski.com/articles/Three_Amendments.pdf” http://alex.kozinski.com/articles/Three_Amendments.pdf”
- dragonwriter 8y ago
  > Hayek proposed a new amendment that would state, “Congress shall make no law authorizing government to take any discriminatory measures of coercion.” All substantive law authorizes government to take measures of coercion (otherwise, it has no compulsory enforcement, and is effectively recommendation rather than law.) All law distinguishes on some axes, and thus is discriminatory on some basis. So, Hayek’s proposal amounts to “Congress shall make no law.” Which clearly solves any problem with laws Congress makes, but creates a whole host of new problems. (The system under the Articles of Confederation failed over a less-intense version of the same problem such an amendment would create.)
  - abecedarius 8y ago
    Key word "discriminatory". I don’t know exactly what Hayek meant, but I’d bet it covers favors for a particular firm, and not general prohibition of murder.
  - krrrh 8y ago
    Of course you understand why the proposal as you interpret it would not be workable, which is why that isn't what he proposed. He proposed banning discriminatory measures of coercion. IE, you couldn't pass a law that allowed some classes of people to steal and others to not steal. That seems an obvious principle of law. Presumably such an amendment would mean that you couldn't have a military draft that only applied to men and not to women, and it would have invalidated laws that gave preference to men in inheritance or property (the goals of the failed Equal Rights Amendment are a subset of Hayek's proposal). Under most interpretations that I've seen, it would still allow social security, welfare or basic income, and progressive taxation since all classes of people could expect to age or move in and out of different income brackets in their lifetime. It would probably also still allow for broadly applied Pigouvian taxes, but I'm not a legal scholar. The point in the context of this discussion is that you would nearly require a constitutional amendment to enforce the basic principle that a law should apply fairly and equally to all. Think of it adding the idea of equal obligations to balance the idea of equal rights. If we want an antitrust law that applies to businesses, then it should also apply to the business of baseball [1]. If we are to have a copyright that expires, then there should be no special exemption for the works of Mary Baker Eddy, but as a matter of legal principle not religious freedom [2]. It would challenge all sorts of special exemptions for specific companies and industries, and reduce corruption by making a large amount of lobbying pointless. [1] https://slate.com/news-and-politics/2002/07/why-does-baseball-have-an-antitrust-exemption.html https://slate.com/news-and-politics/2002/07/why-does-basebal... [2] https://www.nytimes.com/1987/09/23/us/christian-science-text-s-copyright-is-ruled-illegal-by-appeals-court.html https://www.nytimes.com/1987/09/23/us/christian-science-text...
    - dragonwriter 8y ago
      > Of course you understand why the proposal as you interpret it would not be workable, which is why that isn't what he proposed. It's exactly what the quoted text presented as his proposal was; I don't really think enough about Hayek to go and research whether a direct quote presented as his is accurate or not (on the principle that whether or not it's what Hayek proposed, it is what the person on HN name-dropping Hayek is bringing into the discussion, and the accuracy of the attribution isn't of paramount concern to me.) > He proposed banning discriminatory measures of coercion You seem to think “discriminatory” without any qualification means something like “discriminating on illegitimate axes” or “discriminating on non-germane axes”, which has two problems: first, that's not what the bare word means, but secondly, even if it did mean that, the Constitution already has been interpreted as affording such protection against federal action (which is all the proposed text addresses, and rather clumsily at that) under the Due Process Clause of the 5th Amendment and the Due Process and Equal Protection clauses of the 14th Amendment. If Hayek wanted to fine tune the applicability of those to either explicitly add to the list of illegitimate bases for discrimination, or to alter the tests in applying them, then the text offered is far too nonspecific. > Under most interpretations that I've seen, it would still allow social security, welfare or basic income Basic income I can see, maybe. Social security discriminates on age and other bases (including sourc of labor income, on the payment requirement side), welfare discriminates on family status and income. How those are allowed in a sweeping ban on “discriminatory” applications of coercive power is...far from obvious, unless not it only invokes the kind of balancing tests already applied by the existing Constitutional guarantees against unequal treatment. In which case, we already have that. > The point in the context of this discussion is that you would nearly require a constitutional amendment to enforce the basic principle that a law should apply fairly and equally to all. A point that was clear with regard to state law before Hayek was born, so we adopted an federal amendment for exactly that purpose.

dragonwriter 8y ago

> Does the Equal Protection clause of the 14th amendment apply to laws that affect businesses? Yes. > If so, then these kinds of perks may be illegal. Probably not; except for subject matter subject to strict or intermediate scrutiny, unequal treatment that has a rational relationship to a legitimate government function (which is quite broad for state governments, as they have general competence rather than limited purposes for federal Constitutional purposes) is allowed.

krrrh 8y ago

Hayek proposed a new amendment that would state, “Congress shall make no law authorizing government to take any discriminatory measures of coercion.” [1] Which would help end this sort of structural corruption. Corporate welfare is one of the plainest examples of the state using its power to transfer wealth from the general population to the ablest and wealthiest among us. It’s immoral at a fundamental level, and as stated in TFA, corrupting the economy and society in this manner is a bipartisan practice. [1] http://alex.kozinski.com/articles/Three_Amendments.pdf” http://alex.kozinski.com/articles/Three_Amendments.pdf”

dragonwriter 8y ago
> Hayek proposed a new amendment that would state, “Congress shall make no law authorizing government to take any discriminatory measures of coercion.” All substantive law authorizes government to take measures of coercion (otherwise, it has no compulsory enforcement, and is effectively recommendation rather than law.) All law distinguishes on some axes, and thus is discriminatory on some basis. So, Hayek’s proposal amounts to “Congress shall make no law.” Which clearly solves any problem with laws Congress makes, but creates a whole host of new problems. (The system under the Articles of Confederation failed over a less-intense version of the same problem such an amendment would create.)
- abecedarius 8y ago
  Key word "discriminatory". I don’t know exactly what Hayek meant, but I’d bet it covers favors for a particular firm, and not general prohibition of murder.
- krrrh 8y ago
  Of course you understand why the proposal as you interpret it would not be workable, which is why that isn't what he proposed. He proposed banning discriminatory measures of coercion. IE, you couldn't pass a law that allowed some classes of people to steal and others to not steal. That seems an obvious principle of law. Presumably such an amendment would mean that you couldn't have a military draft that only applied to men and not to women, and it would have invalidated laws that gave preference to men in inheritance or property (the goals of the failed Equal Rights Amendment are a subset of Hayek's proposal). Under most interpretations that I've seen, it would still allow social security, welfare or basic income, and progressive taxation since all classes of people could expect to age or move in and out of different income brackets in their lifetime. It would probably also still allow for broadly applied Pigouvian taxes, but I'm not a legal scholar. The point in the context of this discussion is that you would nearly require a constitutional amendment to enforce the basic principle that a law should apply fairly and equally to all. Think of it adding the idea of equal obligations to balance the idea of equal rights. If we want an antitrust law that applies to businesses, then it should also apply to the business of baseball [1]. If we are to have a copyright that expires, then there should be no special exemption for the works of Mary Baker Eddy, but as a matter of legal principle not religious freedom [2]. It would challenge all sorts of special exemptions for specific companies and industries, and reduce corruption by making a large amount of lobbying pointless. [1] https://slate.com/news-and-politics/2002/07/why-does-baseball-have-an-antitrust-exemption.html https://slate.com/news-and-politics/2002/07/why-does-basebal... [2] https://www.nytimes.com/1987/09/23/us/christian-science-text-s-copyright-is-ruled-illegal-by-appeals-court.html https://www.nytimes.com/1987/09/23/us/christian-science-text...
  - dragonwriter 8y ago
    > Of course you understand why the proposal as you interpret it would not be workable, which is why that isn't what he proposed. It's exactly what the quoted text presented as his proposal was; I don't really think enough about Hayek to go and research whether a direct quote presented as his is accurate or not (on the principle that whether or not it's what Hayek proposed, it is what the person on HN name-dropping Hayek is bringing into the discussion, and the accuracy of the attribution isn't of paramount concern to me.) > He proposed banning discriminatory measures of coercion You seem to think “discriminatory” without any qualification means something like “discriminating on illegitimate axes” or “discriminating on non-germane axes”, which has two problems: first, that's not what the bare word means, but secondly, even if it did mean that, the Constitution already has been interpreted as affording such protection against federal action (which is all the proposed text addresses, and rather clumsily at that) under the Due Process Clause of the 5th Amendment and the Due Process and Equal Protection clauses of the 14th Amendment. If Hayek wanted to fine tune the applicability of those to either explicitly add to the list of illegitimate bases for discrimination, or to alter the tests in applying them, then the text offered is far too nonspecific. > Under most interpretations that I've seen, it would still allow social security, welfare or basic income Basic income I can see, maybe. Social security discriminates on age and other bases (including sourc of labor income, on the payment requirement side), welfare discriminates on family status and income. How those are allowed in a sweeping ban on “discriminatory” applications of coercive power is...far from obvious, unless not it only invokes the kind of balancing tests already applied by the existing Constitutional guarantees against unequal treatment. In which case, we already have that. > The point in the context of this discussion is that you would nearly require a constitutional amendment to enforce the basic principle that a law should apply fairly and equally to all. A point that was clear with regard to state law before Hayek was born, so we adopted an federal amendment for exactly that purpose.