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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 discriminator

• 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.
  • krrrh 8y ago
    From what I can tell the quoted proposed amendment was a line in an interview, and meant to get across the general principle, I don't know if he fleshed it out elsewhere in a more exact manner. So your comments about the inadequacy or clumsiness of the wording, or inadequate sourcing are fair. As are criticisms of my own clumsiness in trying to connect the principle of equal treatment under law to the idea that taxes and regulations should also be equally applied as written. > under the Due Process Clause of the 5th Amendment and the Due Process and Equal Protection clauses of the 14th Amendment. It should be admitted that the existing federal amendments weren't enough to convince the proponents of the ERA that there was enough protection from laws discriminating on sex. You can add the uniformity clause of article 1 to constitutional provisions that could have limited the ability of the federal government to subsidize some businesses at the expense of others, but neither it or the 14th amendment did. The constitution-as-interpreted does not stop congress, state, and local governments from being able to grant exemptions from a range of taxation and regulations to specific businesses by name. Courts don't believe that this violates any existing constitutional restriction, though I'm arguing that it does violate the spirit or principle of non-discrimination and equal treatment under law. It's the source of a great deal of corruption and abuse of the powers of government, and would seem to require a constitutional constraint on congress to reduce it since democratic incentives don't seem to work and actually seem to make it worse. Existing constraints aren't broad enough, and perhaps Hayek's is too broad for your taste, or perhaps you believe the goal can be achieved without resort to the constitution. It doesn't change the argument that there are inadequate restrictions on the worst forms of corporate welfare, if you agree that we should have less of that sort of thing. Is your argument that there is no possible amendment that would thread the needle of preventing corporate welfare like the Amazon subsidies without severely restricting all congressional action? Or do you have wording that you think might? Maybe Jack Markell's proposed law which is mentioned in the article is good enough, but I'd like to see something that restricts the transfer of money from the general population to the best off and that would prevent moral travesties like giving billions of taxpayers' money to one of the most successful companies in history or professional sports teams.