laws and such

Constitutional Law Is Full of 'Contradictions'

Louis Seidman finds a contradiction in the Court of Appeals overturning the Ethics in Government Act (Op-Ed, April 25). He argues that the ''judges contended that constitutional rights are best protected by political accountability and ordinary politics. Yet the 1978 Ethics in Government Act was the product of ordinary politics.'' One wonders if Mr. Seidman realizes how thoroughly his discovered ''contradiction'' permeates United States constitutional law.

For example, because freedom of speech is necessary to preserve ''political accountability and ordinary politics,'' the Supreme Court has repeatedly invoked the First Amendment to overturn acts of Congress that restrict this freedom. The Court never held that an act of Congress may restrict freedom of speech merely where the act ''was the product of ordinary politics.'' Indeed, many respected theorists have attempted to construe almost all American constitutional law as a type of political ''antitrust'' law through which the Federal courts are empowered to keep the ''political marketplace'' and the ''marketplace of ideas'' free.

If Mr. Seidman senses a general contradiction in the United States Constitution, he is in good company: it is said that Kurt Godel, perhaps the greatest logician who ever lived, long refused to become an American citizen and pledge allegiance to the principles of that document because it was, to his eye, so obviously internally inconsistent. As Justice Oliver Wendell Holmes pointed out, the path of the law has not been logic, but experience. KENNETH MCKENNA New York, April 25, 1988

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In The Taxing and Spending Clause Article I, Section 8, Clause 1, it states:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

As far as I know, money, diverse as its forms may be, is considered property in most if not all of the cultures. How do you "just"-ly compensate for the tax you have collected? A free lance programmer for example, can make as much as 5 mechanics while staying at home where as the 5 mechanics use roads, bridges and various other infrastructure on a daily basis. Even in the 18th century, it would be an extremely deviant and extraordinary claim that one will be "just"-ly compensated for his tax paid.

Did the founding fathers grow weary of their undertakings and decided to forsake due diligence and instead, wager on the possibility that no dangerous amount of people will invest their time on the fault finding in the future? If that were the case, they most certainly were right.

Is this a contradiction? If it is, what should we make of it? Repair it? Ignore it until it blows up like what we always do?

  Perhaps the compensation for the taking of taxes is the "common Defence and general Welfare." The programmer benefits from those, including the activities of the justice department and the courts, as well as from the regulation of interstate and international commerce (for example, a programmer in Maine can work without restriction for an employer in California). The programmer also benefits from patent and copyright protection. However, I suspect that the real answer lies in the fact that "property" . – he historical record on the question is probably too thin to yield a well-supported answer as to the due diligence and the underlying "what were they thinking" question, that is, I doubt there is any record of any original debate where one side demands resolution of the contradiction, and how that charge was answered.   

the freest country in the world can burn flags freely do i agree with burning a flag no except when boy scouts do it because that is what they have to do to dispose of a damaged flag