Massachusetts will require mandatory health insurance.

[David Floyd]

Well, maybe. Your example is different, though, in that it involves activities done in the privacy of one's own home, that cannot be said to impact anyone else in any way whatsoever.

I also think that the implication of this law, if Constitutional, is that providing health services is not a positive duty of government. While I agree with that statement, I'm not sure that most people who support this law would.

[Rufus T. Firefly]

Originally posted by David Floyd
I also think that the implication of this law, if Constitutional, is that providing health services is not a positive duty of government. While I agree with that statement, I'm not sure that most people who support this law would.

But that makes less sense than anything. If providing health services is not a positive duty of the government, tehn teh government cannot possibly justify compelling its citizenry to purchase health insurance. I think the implication of this law is clearly that providing health services is a positive duty of the government, but the government of Massachusetts is too chicken-sh!t to follow through on their own convictions.

[David Floyd]

But that makes less sense than anything. If providing health services is not a positive duty of the government, tehn teh government cannot possibly justify compelling its citizenry to purchase health insurance. I think the implication of this law is clearly that providing health services is a positive duty of the government, but the government of Massachusetts is too chicken-sh!t to follow through on their own convictions.

Except that if providing health services was a positive duty of government, then any reasonable person would have to conclude it can't be outsourced away. That'd be like outsourcing the police or the courts - do you think THAT would be Constituitonal? No way, but law enforcement and a court system are both positive duties of government at the federal and state levels.

No, this law WANTS to imply that providing health services is a duty of the government, but it's actually implying the opposite, unless you really think that outsourcing the court system is OK.

[Imran Siddiqui]

It's different because the government has a positive duty to enforce the law. The universally recognized way of doing so - call it an "industry standard" argument, if you will - is through an organized, standardized police force. The government can't outsource this duty to private companies any more than it can outsource the function of the court system to, say, the American Bar Association.

I don't see why it can't outsource any duty it may have. One, it wouldn't be unconstitutional (depending on state constitutions) [find where the US Constitution prohibits this]. Why can't a state contract with a security company to provide security? It may have a 'positive duty' to provide order and enforce rules (according to society), but who are you to say how they go about performing that duty? As long as they do it successfully, that is all that counts. I mean, they can probably get similar results and pay less for it by having bidding (it could be a government contract).

Who says they have to adhere to the 'industry standard'?

Hell, wouldn't the Libertarian argument support bidding and competition for the agency that does become the security service/police force?

As for the Court argument... it depends on how you read the requirement that every state guarentee a "Republican form of government". I think an independant elected or appointed judiciary is required for that (along with elected legislature and executive). A government run police force is not (as long as ultimate enforcement power rests with the executive).

[Rufus T. Firefly]

Originally posted by David Floyd


Except that if providing health services was a positive duty of government, then any reasonable person would have to conclude it can't be outsourced away. That'd be like outsourcing the police or the courts - do you think THAT would be Constituitonal? No way, but law enforcement and a court system are both positive duties of government at the federal and state levels.

No, this law WANTS to imply that providing health services is a duty of the government, but it's actually implying the opposite, unless you really think that outsourcing the court system is OK.

We agree. However, I don't think the outsourced police analogy (which, btw, I think would be constitutional) is the correct one. It's more like if a state had no public schools and no provision for home-schooling, but still required kids to go to school.

[David Floyd]

I don't see why it can't outsource any duty it may have. One, it wouldn't be unconstitutional (depending on state constitutions) [find where the US Constitution prohibits this]. Why can't a state contract with a security company to provide security?

Well, let's start with my example of the courts. Could the duty of the courts be outsourced to a private agency?

No, it could not, at least not according to Article III Sections 1 and 2. Article III provides an obvious positive duty to establish courts, and even provides certain directives as towards the jurisdiction of each court. It seems pretty clear that outsourcing the courts would not pass muster.

I would also think that outsourcing courts and the police violates due process, as well as the spirit of the 4th Amendment.

Allowing private companies to compete for the right to act as the courts and/or police would certainly violate the "equal protection" clause of the 14th Amendment.

Let's take another example. Would it be OK to allow a private company to count and certify election results? Certainly not - such a function is a positive duty of government at federal, state, and local level, and surely I don't need to convince you of that.

The point is, why should you be able to outsource some, but not all, positive duties of the government? That makes no sense.

It may have a 'positive duty' to provide order and enforce rules (according to society), but who are you to say how they go about performing that duty? As long as they do it successfully, that is all that counts. I mean, they can probably get similar results and pay less for it by having bidding (it could be a government contract).

But handing out government contracts through bidding would be turning over the courts and police to the lowest bidder. What do you think that would do to quality of services provided, not to mention basic principles of fairness and equality under the law? What if, for example, a special interest group successfully bid its way into providing court services? Do you think it's fair for the NRA to issue rulings on gun issues or the NOW to issue rulings on abortion issues? If it isn't fair, then due process and equality under the law aren't being observed.

Who says they have to adhere to the 'industry standard'?

Well, my impression is that "industry standard" is a valid argument to be applied against, well, industries, for things such as quality control, product warranty, and the like. I don't see why that same argument couldn't and wouldn't be applied against the government as it pertains to the duties of government.

[Imran Siddiqui]

Could the duty of the courts be outsourced to a private agency?

Depends on how you read the Republican form of government clause. If you don't think an independant judiciary is required for a Republican form of government, then yeah, it could be. Personally, I think it is needed.

No, it could not, at least not according to Article III Sections 1 and 2.

Article III solely deals with Federal Courts. Nothing to do with State Courts, aside from jurisdiction issues.

I would also think that outsourcing courts and the police violates due process

Depending on the arrangement with a court company, that could very well be true. But I fail to see the argument with a outsourced police force. Where is your due process violated due to a private security system running the police?

Would it be OK to allow a private company to count and certify election results? Certainly not - such a function is a positive duty of government at federal, state, and local level, and surely I don't need to convince you of that.

Yes you do. Why wouldn't that be Constitutional? I don't see a 'positive duty of government and government alone' in the Constitution.

Then again, if you want, you can make an argument that the government being solely in charge of elections is required for a Republican form of government. Perhaps I could buy that.

And some may indeed be making that argument against Diebold machines... or any other private company making vote counting equipment. Perhaps that means we should go to paper ballots... or the government should make the counting machines?

why should you be able to outsource some, but not all, positive duties of the government

Like I said, to me it totally depends on whether or not it violates the requirements of a Republican form of government. Outside that, I say outsource away!

What do you think that would do to quality of services provided, not to mention basic principles of fairness and equality under the law? What if, for example, a special interest group successfully bid its way into providing court services? Do you think it's fair for the NRA to issue rulings on gun issues or the NOW to issue rulings on abortion issues? If it isn't fair, then due process and equality under the law aren't being observed.

Why do you think it has to be that way? You do realize that government contracts are CONTRACTS? You mess up your contract, you are out of there. And you seem to think there is only one form of outsourcing. For police agencies, why can't you have government appointed chiefs and private lower ranks? Or government appointed higher ranks (above Sergent) and private other ranks. Plenty of options.

It seems both of your objections are on private courts, and I believe I've addressed that.

[David Floyd]

Article III solely deals with Federal Courts. Nothing to do with State Courts, aside from jurisdiction issues.

So you agree that the Federal Courts can't be outsourced because of Article III?

Depending on the arrangement with a court company, perhaps. But I fail to see the argument with a outsourced police force.

Well, the danger inherent in outsourcing is that you possibility exists of outsourcing to a company that hates black people, for example.

Yes you do. Why wouldn't that be Constitutional? I don't see a 'positive duty of government and government alone' in the Constitution.

Then again, if you want, you can make an argument that the government being solely in charge of elections is required for a Republican form of government. Perhaps I could buy that.

That's ultimately my point, yes.

Like I said, to me it totally depends on whether or not it violates the requirements of a Republican form of government. Outside that, I say outsource away!

What duty of government doesn't contribute towards a Republican form of government? National defense? Check. Courts? Check. Elections? Check. The police? Well, you don't seem to agree on that one, but I'm stuck on the issue of fairly enforcing the law amongst all segments of the population, and it seems to me that the best chance of this being done is by having the government be solely responsible for the police.

Any other positive duty of the government that you can think of has to be performed in a manner fair to all citizens - it can't discriminate on any basis, must take due process of law into account, etc., etc., etc. Because of the inherent conflict of interests private businesses, special interests, etc., have in complete fairness, I can't see how it could be Constitutional to allow anyone other than the government to perform the functions of government.

Why do you think it has to be that way? You do realize that government contracts are CONTRACTS? You mess up your contract, you are out of there.

But you miss the point? Who rules on contracts? The courts. Who enforces the decision of the courts? The police. It'd be a case of the fox watching the henhouse - if the government wanted to sue the NRA for breach of contract for issuing clearly biased court decisions, they'd have to sue the NRA in a court controlled BY the NRA. How effective do you think that would be?

[Imran Siddiqui]

So you agree that the Federal Courts can't be outsourced because of Article III?

We were talking about state government. But federal courts can't be outsourced because Congress has to create them and give them compensation.

Well, the danger inherent in outsourcing is that you possibility exists of outsourcing to a company that hates black people, for example.

And the danger is that your public police force hates black people, for example .

What duty of government doesn't contribute towards a Republican form of government? National defense? Check. Courts? Check. Elections? Check.

Why national defense? States aren't allowed to engage in that. Remember, Republican form of government clause applies to the states, and that is who we are talking about.

Elections, courts, executive branch, legislature are all, IMO, necessary for the government to run for a Republican form of government to exist.

Then again, though, like I said, what about Diebold voting machines that count the votes? There have been misgivings, and the question is does a private company making the voting machines violate the requirement for a Republican form of government? Because a basic requirement of a Republican form of government (government running fair elections) is violated.

Because of the inherent conflict of interests private businesses, special interests, etc., have in complete fairness, I can't see how it could be Constitutional to allow anyone other than the government to perform the functions of government.

Conflicts of interest doesn't make something completely invalid. You may say that a police force will hesitate to arrest its own company members, but you can also say that a public police force will hestitate to arrest politicians, or their relatives (and Hell, that happens already).

But you miss the point? Who rules on contracts? The courts. Who enforces the decision of the courts? The police. It'd be a case of the fox watching the henhouse - if the government wanted to sue the NRA for breach of contract for issuing clearly biased court decisions, they'd have to sue the NRA in a court controlled BY the NRA. How effective do you think that would be?

What point am I missing? You are focusing on a private court for some reason.

A private police force that violates its contracts would likely have it be struck down by the public courts.

[David Floyd]

We were talking about state government. But federal courts can't be outsourced because Congress has to create them and give them compensation.

Well, I don't think state courts can be outsourced either, because many of the issues they rule on touch on federal issues - economics, discrimination, due process, etc. It seems to me that if state courts were outsourced, federal courts would be overloaded with appeals from state court decisions, on the basis that the outsourced state courts by their very existence violate the principle of an impartial trial.

And the danger is that your public police force hates black people, for example

Sure. But there is, at least theoretically, a system in place to deal with that - an impartial court system and government oversight that is not bound by decisions of an outsourced court, which may or may not be impartial, and even if it is, the perception almost certainly will exist that it is not.

The integrity of the courts would be destroyed, if for no other reason than no one would trust them.

Why national defense? States aren't allowed to engage in that. Remember, Republican form of government clause applies to the states, and that is who we are talking about.

Fair enough. Just to be clear, we at least agree that the FEDERAL government cannot outsource its functions?

Then again, though, like I said, what about Diebold voting machines that count the votes? There have been misgivings, and the question is does a private company making the voting machines violate the requirement for a Republican form of government?

My assumption would be that even with the voting machines, there is oversight and a system of automatic recounts in the case of close system counts.

Conflicts of interest doesn't make something completely invalid. You may say that a police force will hesitate to arrest its own company members, but you can also say that a public police force will hestitate to arrest politicians, or their relatives (and Hell, that happens already).

True, but obviously conflicts of interest should be minimized. No one is going to send a police officer to arrest his father, for example. As for not arresting politicians, it certainly does happen. Hell, Tom DeLay was indicted and COULD be facing prosecution.

A private police force that violates its contracts would likely have it be struck down by the public courts.

Certainly, but again, a system of private, outsourced, courts is different than the system of public, government run courts we have today. In your outsourcing situation, you could have a situation in which the "legitimate" judicial authority renders a decision that is obviously wrong, but the "legitimate" police force disagrees and refusing to carry out the decision. This leads down a road resulting in either an end to judicial independence or an end to the rule of law, or both.

[Imran Siddiqui]

Well, I don't think state courts can be outsourced either

Can we get off the courts... usually in arguments you need another side to argue against. It's been like 3 posts since courts was declared a non-issue, yet you continue to debate ghosts for some reason.

we at least agree that the FEDERAL government cannot outsource its functions?

Too broad. What functions? After all, government contracts are indeed outsourcing of some of its functions (national security to defense contractors for one).

My assumption would be that even with the voting machines, there is oversight and a system of automatic recounts in the case of close system counts.

Could not that apply to police forces? Public oversight in the manner of publically appointed (or elected) higher ranks?

As for not arresting politicians, it certainly does happen.

And companies blow the whistle on their own employees. But you can't seriously sit there and tell me that politicians don't get the benefit of the doubt by officers? I've known kids of city politicians who have gotten away with 10 times the crap any other kid would have.

[David Floyd]

Can we get off the courts... usually in arguments you need another side to argue against. It's been like 3 posts since courts was declared a non-issue, yet you continue to debate ghosts for some reason.

Sure, I'll be glad to drop the court issue if you agree they can't be outsourced. You continue to bring up "public" courts as a counter to my arguments against outsourcing other functions of government, so you certainly seem to agree with me.

Too broad. What functions? After all, government contracts are indeed outsourcing of some of its functions (national security to defense contractors for one).

Do you mean the PMCs in Iraq? AFAIK, those companies operate under the aegis of the US military/DOD. Hiring mercenaries is different than outsourcing the DOD.

Could not that apply to police forces? Public oversight in the manner of publically appointed (or elected) higher ranks?

I think that electing police oversight officials is just as dangerous as electing judges. It politicizes the position.

And companies blow the whistle on their own employees. But you can't seriously sit there and tell me that politicians don't get the benefit of the doubt by officers? I've known kids of city politicians who have gotten away with 10 times the crap any other kid would have.

You're absolutely right that corruption is a problem. I just think that outsourcing will increase corruption, in addition to being unconstitutional for the reasons I've already stated.

On the whole, you seem to agree that SOME functions can't be outsourced, but others can. Is your sole criteria whether or not the function in question pertains to maintaining a Republican form of government?

If so, I'll go back to my previous question, which is, in some way, shape or form, doesn't EVERY proper function of government contribute towards maintaining the Republic?

[Imran Siddiqui]

Do you mean the PMCs in Iraq? AFAIK, those companies operate under the aegis of the US military/DOD. Hiring mercenaries is different than outsourcing the DOD.

No, I mean government contractors. Like Lockheed-Martin building air force planes. If the US government is responsible for national security and can't oursource that duty, then how in the world can it allow a private company to build its planes?

Also recall, that before 9/11, private companies were in charge of airport security. It was only recently that the TSA took that job over. But they are working with private firms to hire the screeners.

I think that electing police oversight officials is just as dangerous as electing judges. It politicizes the position.

They are both widespread and no one is calling it unconstitutional.

Is your sole criteria whether or not the function in question pertains to maintaining a Republican form of government?

If so, I'll go back to my previous question, which is, in some way, shape or form, doesn't EVERY proper function of government contribute towards maintaining the Republic?

You are twisting the clause to suit your argument. Every state must have a Republican form of government. Certain things you can say are necessary for a Republican form of government. That is vastly different than saying something 'contributes towards maintaining the Republic'. With that wordage, I can easily say that lawyers in government courts 'contribute[s] towards maintaining the Republic', and therefore they should all be hired by the state with none public (courts can't exist without lawyers advancing arguments... and that does contribute towards the maintaining of the Republic).

An entirely public police force is not necessary for a state or city to have a Republican form of government.

[David Floyd]

No, I mean government contractors. Like Lockheed-Martin building air force planes. If the US government is responsible for national security and can't oursource that duty, then how in the world can it allow a private company to build its planes?

The US doesn't really have nationalized industry. Military contracts for procurement are nothing new. Buying planes from Lockheed-Martin that have been selected by the military and meet military specifications is hardly outsourcing national defense.

They are both widespread and no one is calling it unconstitutional.

I don't necessarily think electing high police officials is unconstitutional, either. I just think it's a bad idea that would lead to problems, and those problems could potentially cause the practice of electing police officers to be struck down.

You are twisting the clause to suit your argument. Every state must have a Republican form of government. Certain things you can say are necessary for a Republican form of government. That is vastly different than saying something 'contributes towards maintaining the Republic'. With that wordage, I can easily say that lawyers in government courts 'contribute[s] towards maintaining the Republic', and therefore they should all be hired by the state with none public (courts can't exist without lawyers advancing arguments... and that does contribute towards the maintaining of the Republic).

An entirely public police force is not necessary for a state or city to have a Republican form of government.

You're right, I misspoke. However, I certainly think that a public police force is certainly very important to maintain a Republican form of government, on the theory that without the law enforcement arm being as law-abiding and impartial as possible, you can't have a Republican form of government. Since I don't agree that a private police force would be either law-abiding or impartial to the extent that everyone in this country expects and for the most part gets from the current law enforcement agencies, I can't agree with your argument.

So, I'll restate my question - what function of government cannot and does not impact the maintenance of a Republican form of government?

[Imran Siddiqui]

Buying planes from Lockheed-Martin that have been selected by the military and meet military specifications is hardly outsourcing national defense.

Of course it is (well, part of it). This is highly sensitive military hardware, and its been sent to private business to make. The military is charged with defending the US, and they have gone to the private sector to help them with that task. The fact that the US does NOT have nationalized industry makes this outsourcing necessary.

And, as I edited in my previous post, before 9/11 private companies ran aiport security. States and cities outsourced their security to the private airlines. TSA just took over security recently, but are now allowing hiring through private companies again... which is obviously a case of outsourcing.

I certainly think that a public police force is certainly very important to maintain a Republican form of government, on the theory that without the law enforcement arm being as law-abiding and impartial as possible, you can't have a Republican form of government. Since I don't agree that a private police force would be either law-abiding or impartial to the extent that everyone in this country expects and for the most part gets from the current law enforcement agencies, I can't agree with your argument.

So, I'll restate my question - what function of government cannot and does not impact the maintenance of a Republican form of government?

Your restatement doesn't work. Any function of government can, at some level, impact the maintainance of a Republican form of government, no matter who runs it. For example a corrupt public police force has a big impact on keeping a Republican form of government.

However, I do not think a private police force necessarily has any more of a negative impact on the maintainance of a Republican form of government than a public one. I think a private police force can, in some instances, be MORE law abiding and impartial than a public police force. Lord knows the current public police forces we have aren't all that law abiding or impartial. I'd imagine it'd be hard to do worse .