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Feds to Target Texting?

Senator Charles Schumer and several other Democratic Senators have introduced federal legislation to ban texting while driving. Specifically, the law would require states to enact anti-texting legislation or forfeit 25 percent of their share of federal highway funds.

Adam B. (www):
Given the statistics on the dangerousness of these practices (a 23x higher rate of collisions), this would seem to be wise public safety legislation. Hell, even talking on an earpiece increases your accident risk.
7.30.2009 9:46am
Armed Canadian (www):
Nothing like a little extortion from the government to brighten your day! Don't existing distracted driving laws already cover this?
7.30.2009 9:48am
Gabriel McCall (mail):
Alas, poor Article I Section 8. I knew him, Horatio.
7.30.2009 9:49am
Oren:

Don't existing distracted driving laws already cover this?

Yes, but it's no use having a general law that covers all the situations when you can make a big stink about passing a narrower law targeting the dangerous behavior.

Plus, Congress has to do something not that the NHTSA report is out!
7.30.2009 9:49am
Oren:

Alas, poor Article I Section 8.

Blame the 16A, not the misunderstanding of Art I.

Unless you seriously think building interstate highways doesn't come under the commerce clause, in which case who knows what does.
7.30.2009 9:51am
John Jenkins (mail):
@Oren: What does the income tax have to do with this?
7.30.2009 10:00am
David M. Nieporent (www):
@Oren: What does the income tax have to do with this?
Where do you think the Feds get the money to blackmail/extort/bribe the states with?
7.30.2009 10:06am
steve (www):
Given the statistics on the dangerousness of these practices (a 23x higher rate of collisions), this would seem to be wise public safety legislation. Hell, even talking on an earpiece increases your accident risk.


Not arguing the fact that driving while distracted is a bad thing, but the federal government does NOT have a role in such decisions!

If such a law is required (I do not think it is) it should be legislated at the state level. Remember the US Constitution?

If Schumer thinks the feds need to get involved with texting, maybe they should get involved with regulation of backyard swimming pools ... do you know how many kids drown in pools?
7.30.2009 10:06am
AF:
What's next? No drunk driving?
7.30.2009 10:09am
ruuffles (mail) (www):

What's next? No drunk driving?

That was likely the inspiration, requiring states to set 21 as age for alcohol. Upheld in South Dakota v. Dole.
7.30.2009 10:10am
ruuffles (mail) (www):
I should note that in Dole, Scalia and Rehnquist were in the majority and only Brennan and O'Connor dissented.
7.30.2009 10:11am
martinned (mail) (www):
While I don't like this approach any more than most VC commenters, I have to ask: Given that this is a reasonable law, federalism concerns aside, wouldn't one expect the states to already have such laws on the books?
7.30.2009 10:11am
Oren:

Not arguing the fact that driving while distracted is a bad thing, but the federal government does NOT have a role in such decisions!

The Fed has a role in determining where to build Federal Interstate Highways. In fact, it's hard to think of a constitutional reason why Congress cannot chose to build them wherever they want and for whatever reasons they want.


Where do you think the Feds get the money to blackmail/extort/bribe the states with?

That is correct, of course, but the 16A also released Congress from that pesky apportionment requirement that would otherwise restrict their ability to spend it.

That is to say there are two components to the bribe -- the first is being able to get the money and the second is having the freedom to spend/withhold the money at your whim.
7.30.2009 10:13am
AF:

That was likely the inspiration, requiring states to set 21 as age for alcohol. Upheld in South Dakota v. Dole.


I'm aware of that. But the texting ban is far more justifiable. Its connection to federal highways is far more direct that the minimum drinking age. And unlike drunk driving, texting while driving is legal in many states.
7.30.2009 10:13am
Oren:

Given that this is a reasonable law, federalism concerns aside, wouldn't one expect the states to already have such laws on the books?

Texting is a new phenomenon, at least to the legislatures, which are perennially unhip.
7.30.2009 10:15am
Oren:

I'm aware of that. But the texting ban is far more justifiable. Its connection to federal highways is far more direct that the minimum drinking age.

Why is the "connection" to Federal Highways relevant at all.

Congress isn't passing a law about texting, it's passing a law regarding highway funding -- a matter clearly under its plenary control.
7.30.2009 10:17am
Gabriel McCall (mail):
Unless you seriously think building interstate highways doesn't come under the commerce clause, in which case who knows what does.

Building a road is not regulation of commerce, it's facilitation of commerce. The more applicable clause would be Post Roads. And this bill doesn't apply to just interstate highways anyway.

Even so, if the feds want to regulate texting by the guys driving the asphalt trucks patching the interstates, I might not complain too loudly. I can even see a case for passing laws on long-haul truckers. Non-commercial activity of private citizens on a local road for a local trip doesn't fall anywhere within legitimate federal authority, unless you think it's ok that the Commerce Clause swallows the Constitution.
7.30.2009 10:19am
Houston Lawyer:
At last, something out of this session that I don't object to.

But just because states pass such laws doesn't mean that they will enforce them.
7.30.2009 10:19am
martinned (mail) (www):

Texting is a new phenomenon, at least to the legislatures, which are perennially unhip.

Just checked quickly, and the Dutch government saw fit to ban all use of a mobile phone (other than hands-free) while operating a motor vehicle by decree of February 4, 2002. How hard is that?
7.30.2009 10:24am
rarango (mail):
I appreciate the learned legal analyses of the law; the executive side of me is more concerned how some dumb s**t law is going to be enforced. From my experience, clearly the feds would have to send State Troopers to anti-texting classes after hiring some 2000 dollar a day consulting firm to develop the anti-texting detection curriculum. And of course the feds won't pay for the overtime or backfill time when the troopers have to go to somewhere near the beltway to take a two week course. All legislation should require the development of at least three unintended consequences scenarios.
7.30.2009 10:24am
Gabriel McCall (mail):
Congress isn't passing a law about texting, it's passing a law regarding highway funding -- a matter clearly under its plenary control.

Granted that this is the current state of the law, are you really OK with this end run around the tenth amendment and Art I Sec 8? Would you agree that there are non-frivolous legal arguments to be made that the current state of law is unconstitutional?
7.30.2009 10:25am
Oren:

Non-commercial activity of private citizens on a local road for a local trip doesn't fall anywhere within legitimate federal authority, unless you think it's ok that the Commerce Clause swallows the Constitution.

And Congress is not regulating that non-commercial activity of private citizens on local roads.

Listen, if person A tells person B "I'll give you $5 to play the banjo" then you cannot accuse person A of playing the banjo in excess of their enumerated authority. They aren't -- they are merely spending their money.


unless you think it's ok that the Commerce Clause swallows the Constitution.

As I said earlier in the thread (you did read all the comment before posting your own, right?) it's not the commerce clause that allows this, it's the 16A's combination of (a) revenue and (b) total freedom to apportion that spending however they like for whatever reason they like in whatever fashion they like.
7.30.2009 10:27am
Oren:

Granted that this is the current state of the law, are you really OK with this end run around the tenth amendment and Art I Sec 8? Would you agree that there are non-frivolous legal arguments to be made that the current state of law is unconstitutional?

I'm not OK with it as a matter of policy (if I were a Senator, I would vote against it).

But I don't believe it's at all unconstitutional or an "end-run" around anything because the States are free to refuse the money. In order to establish that unconstitutionality, you would have to convince me that Congress has an obligation to apportion highway money to the States irrespective of their State Law.

That is, if Congress has the power to build a highway and Congress has the power not to build a highway then a fortiori, Congress has the power to chose to build a highway wherever they want and for whatever reason they chose.
7.30.2009 10:31am
pete (mail) (www):

Would you agree that there are non-frivolous legal arguments to be made that the current state of law is unconstitutional?


I think federal laws like this are pretty stupid (even more so when applied to things like a 21 year old drinking age when I disagree with what the law is trying to accomplish), but as long as states are free to turn down the money then I have no problem with their constitutionality. The end run can be stopped by the states whenever they are willing to turn down the bribe.
7.30.2009 10:34am
rick.felt:
Blame the 16A, not the misunderstanding of Art I.

If you want to blame an Amendment for allowing Congress to bribe/extort the states, seventeen is the one you're looking for.
7.30.2009 10:37am
Melancton Smith:
What doesn't work in Chicago doesn't work in Cheyenne...or something like that.
7.30.2009 10:38am
PC:
I'm looking forward to the road blocks.

Police officer: "Sir, have you been texting tonight?"
7.30.2009 10:42am
cathyf:
As a fan of the Allstate commercial, I'm wondering when we are going to have a ban on changing your pants while driving?
7.30.2009 10:42am
ChrisIowa (mail):
One of the worst cases of distracted driving I ever saw was when I was following a police car. It appeared to me that he was trying to work his radio and is in-car computer at the same time, while hitting the curb and crossing the ceterline several time in the length of a city block. Any anti-texting bill should also apply in similar cases.

There are already laws against reckless driving, that should be sufficient.
7.30.2009 10:49am
cboldt (mail):
If Congress was serious about safety, they'd also pass a similar burden to states relating to eating food and drinking liquids while driving. Agreed with the observation that police use of in-car computers is also "texting"
7.30.2009 10:52am
jawats (mail):
It's the omnicompetent nanny state.
7.30.2009 10:54am
subpatre (mail):
More of the Democrat's war on science: "...found texting drivers to be 23 times more likely to be involved in a crash or a near miss."

On a less snide note, it appears Schumer's proposal only criminalizes texting by commercial train and bus operators. And yes, the press release depends on yet more faulty 'research', innuendo and misleading statistics.

IMO these type of laws were inevitable due to the non-criminal treatment of motor vehicles, and then noncriminal treatment of motor vehicle driving. [Yes, some acts of operating are criminal, but only specific, uncommon ones.]

Society and law make a presumption that death, injury and property loss due to a person operating a car are (at worst) due to someone's "fault". Yet we and the law presume death, injury and property loss due to a person not operating a car is due to reasonably foreseeable actions; criminally charging the offender with felonies as homicide, maiming, etc.

My point is that we/society doesn't treat driving cars —and the wrecks caused— the same as or comparably to how we treat other malfeasance. We call gross negligence that kills 40,000 per year an 'accident rate'. It is a faulty method of treating driving behavior, and it encourages lawmakers (Schumer) to 'plug the loopholes.
7.30.2009 10:55am
Phil Smith (mail):
So what is the PC for this offense?
7.30.2009 10:55am
AF:
Why is the "connection" to Federal Highways relevant at all.

Because "conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.'" South Dakota v. Dole.
7.30.2009 10:58am
martinned (mail) (www):

It's the omnicompetent nanny state.

Don't be silly. The enactment of road safety laws is a legitimate activity for any government, no matter how libertarian. Driving under the influence, and other unsafe driving practices, impose an externality on other road users.

Incidentally, it is my impression that calling-while-driving laws are indeed underenforced. (If the police spot someone calling, they'll pull them over, but that's about it.) Then again, their mere enactment is a powerful incentive for everyone inclined to such behavior to get a hands free set.
7.30.2009 10:59am
Allan Walstad (mail):
It's not a bribe, it's extortion. The feds take money in taxes from the citizens of the various states, then use the money to exert power over the states that was withheld from the feds in the Constitution. Gabriel McCall put his finger on the obvious point: building highways is not regulation of interstate commerce. I seem to recall in fact that the original legislative "justification" for the interstate highway system was military, as was the (also patently unconstitutional) original legislation for federal meddling in education, to cite another example. Once the foot's in the door, the opening wedge of sophistry is set aside.

What is essential is the clear INTENT behind the Constitution, to limit the feds to a few specific areas of activity and leave the rest to the states.

That is, if Congress has the power to build a highway and Congress has the power not to build a highway then a fortiori, Congress has the power to chose to build a highway wherever they want and for whatever reason they chose.

Nonsense. If I have the power to spend a twenty or not spend a twenty, it still does not follow that I can spend my twenty whenever I want and for whatever reason I choose--like, bribing a cop, for example.
7.30.2009 11:01am
Nick B (mail):
I'm amazed how few of you understand that Extortion is bad, Federal Government or no.

FYI: my state has banned texting while driving IIRC, so this is not only bad but irrelevant. Just one more power grab.
Nick
7.30.2009 11:05am
Phatty:

The end run can be stopped by the states whenever they are willing to turn down the bribe.

It's not a bribe, it's extortion. The feds get their money from the states and then place conditions on giving it back.
7.30.2009 11:05am
PC:
So what is the PC for this offense?

Driving.
7.30.2009 11:06am
ShelbyC:

Don't be silly. The enactment of road safety laws is a legitimate activity for any government, no matter how libertarian. Driving under the influence, and other unsafe driving practices, impose an externality on other road users.


Except in a federal system with limited power delegated to the centeral govt.

Oren, I would argue that the 10A requires the feds to apportion money without regard to state laws.
7.30.2009 11:07am
jawats (mail):
"Don't be silly. The enactment of road safety laws is a legitimate activity for any government, no matter how libertarian. Driving under the influence, and other unsafe driving practices, impose an externality on other road users."

Simply driving imposes an externality on other road users. The rush to "save" people from other people when the effects of the activity are not well-know, and at least, open to debate, is characteristic of a unthinking government that refuses to sit down and examine a problem carefully, lest it be accused of "not caring" about the citizens. It's the road to total control, because almost every activity imposes an externality on others, and the government is almost never in a good position to take account of those externalities. See here, for instance Car &Driver
7.30.2009 11:09am
Bob from Ohio (mail):

Given the statistics on the dangerousness of these practices (a 23x higher rate of collisions), this would seem to be wise public safety legislation. Hell, even talking on an earpiece increases your accident risk.


Since the cell phone era started, accident rates have gone down in the USA.

Per the FARS Encyclopedia maintained by the US NHTSA,

Fatalities per 100 Million Vehicle Miles Traveled

1994 1.73
2008 1.27

Compare other years, same result.

I believe the rate of non-fatal accidents has also gone down.

There are no "statistics on the dangerousness", there are studies that say they are dangerous. Not the same thing at all.



This is a classic solution in search of a problem.
7.30.2009 11:10am
Cato The Elder (mail) (www):
Are we sure about the direction of the causality in this case? Who are the kinds of people likely to be texting while driving in the first place? Lower IQ people also have relatively slower reactions, and more impulsive behavior also.
7.30.2009 11:13am
subpatre (mail):
For any D-bots upset by my swipe at Democrat mangled statistics, here's the flip side. My home state of Virginia passed a bill outlawing texting while operating a vehicle. The Republican-controlled House of Delegates and Senate crafted a bill outlawing texting while driving . . . unless you're operating an emergency vehicle.

So driving and texting while crawling in downtown traffic can get you fined, but texting at 60, 90, or 150 mph is perfectly legal for cops, firemen, and rescue squads.

The D-party doesn't have a lock on stupidity.
7.30.2009 11:13am
martinned (mail) (www):

Simply driving imposes an externality on other road users.

Which is why the government requires you to pass a test before you're allowed to do it.


The rush to "save" people from other people when the effects of the activity are not well-know, and at least, open to debate, is characteristic of a unthinking government that refuses to sit down and examine a problem carefully, lest it be accused of "not caring" about the citizens.

If you have actual facts about how dangerous certain "driving while X" combinations are, I'd be happy to hear about them. The link you provided is a start.


Previous academic studies—much more scientific than ours—conducted in vehicle simulators have shown that texting while driving impairs the driver's abilities. But as far as we know, no study has been conducted in a real vehicle that is being driven. Also, we decided to compare the results of texting to the effects of drunk driving, on the same day and under the exact same conditions. Not surprisingly, Car and Driver doesn't receive a lot of research grants.

(...)

The results, though not surprising, were eye-opening. Intern Brown's baseline reaction time at 35 mph of 0.45 second worsened to 0.57 while reading a text, improved to 0.52 while writing a text, and returned almost to the baseline while impaired by alcohol, at 0.46. At 70 mph, his baseline reaction was 0.39 second, while the reading (0.50), texting (0.48), and drinking (0.50) numbers were similar. But the averages don't tell the whole story. Looking at Jordan's slowest reaction time at 35 mph, he traveled an extra 21 feet (more than a car length) before hitting the brakes while reading and went 16 feet longer while texting. At 70 mph, a vehicle travels 103 feet every second, and Brown's worst reaction time while reading at that speed put him about 30 feet (31 while typing) farther down the road versus 15 feet while drunk.

Alterman fared much, much worse. While reading a text and driving at 35 mph, his average baseline reaction time of 0.57 second nearly tripled, to 1.44 seconds. While texting, his response time was 1.36 seconds. These figures correspond to an extra 45 and 41 feet, respectively, before hitting the brakes. His reaction time after drinking averaged 0.64 second and, by comparison, added only seven feet. The results at 70 mph were similar: Alterman's response time while reading a text was 0.35 second longer than his base performance of 0.56 second, and writing a text added 0.68 second to his reaction time. But his intoxicated number increased only 0.04 second over the base score, to a total of 0.60 second.

As with the younger driver, Alterman's slowest reaction times were a grim scenario. He went more than four seconds before looking up while reading a text message at 35 mph and over three and a half seconds while texting at 70 mph. Even in the best of his bad reaction times while reading or texting, Alterman traveled an extra 90 feet past his baseline performance; in the worst case, he went 319 feet farther down the road. Moreover, his two-hands-on-the-phone technique resulted in some serious lane drifting.
7.30.2009 11:14am
krs:
Surely there are more worthwhile things these douchebags in the Capitol could be working on right now.
7.30.2009 11:15am
Gramarye:
Oren wrote:
That is correct, of course, but the 16A also released Congress from that pesky apportionment requirement that would otherwise restrict their ability to spend it.


This misunderstands the Apportionment Clause. Apportionment does not and never did apply to spending. It applies exclusively to raising revenue, not spending it.
7.30.2009 11:17am
einhverfr (mail) (www):
Oren:


Unless you seriously think building interstate highways doesn't come under the commerce clause, in which case who knows what does.


Building interstate highways doesn't come under the commerce clause to my knowledge. The post office/post road clause would seem to be a better match. After all I am sure the USPS uses the interstate system, right?
7.30.2009 11:31am
jawats (mail):
We still do not have a link between texting and accidents. Lies, damned lies, and statistics presents itself here, and I think Bob from Ohio is on to something.
7.30.2009 11:36am
Alexia:

Don't be silly. The enactment of road safety laws is a legitimate activity for any government, no matter how libertarian.


You're the one being silly, not to mention condescending. I can absolutely argue an ethical case against victimless crime laws.
7.30.2009 11:38am
ShelbyC:

I can absolutely argue an ethical case against victimless crime laws.


Or more precicely, laws against imposing risk (or that purport to regulate imposing risk)
7.30.2009 11:48am
martinned (mail) (www):

You're the one being silly, not to mention condescending. I can absolutely argue an ethical case against victimless crime laws.

Yes you can, but road safety laws are not about victimless crimes, by definition. (i.e. if you can argue that the behaviour banned by a certain purported road safety law isn't actually dangerous, then it's not a road safety law but just a useless piece of sh**.)

If one is to criticise the law, arguing that it is illegitimate for the federal government to do this makes perfect sense. (Unconstitutional seems difficult, but that's another story.) Arguing that texting while driving is not actually dangerous is a perfectly sensible way to argue against this bill as well, though it would be nice if someone making that claim to actually produce some evidence. But what doesn't make sense is to argue that laws that - by assumption - contribute to road safety are somehow illegitimate as "nanny state" laws.
7.30.2009 11:49am
einhverfr (mail) (www):
So I have a modest proposal regarding highway safety laws.

In commercial aviation, there is something known as the sterile cockpit rule which governs pilot interactions with eachother on the ground, and under 10k ft altitude on approach/climb. The basic rule is that there should be no unnecessary conversation in the cockpit.

It seems to me that there are all sorts of distractions while driving. Taking a tape-recorded foreign language course, for example, might not be substantially safer than talking, hands free, on a cell phone, yet it is unlikely to be regulated even if we eventually see bans on even hands-free cell phone usage. Similarly fighting kids in the back seat can be extremely distracting, as can arguments with one's spouse, etc.

For this reason, I recommend that Congress implement cabin voice recorders on all highway-rated vehicles within 5 years. Congress should further threaten states with a loss of 30% of their highway funds if they fail to implement laws against unnecessary conversation in the cabin at all times while the car is in motion.... After every accident, the CVR would be reviewed and if there was unnecessary conversation in the cabin within half an hour of the incident, the state would be required to fine the driver no less than $1000.
7.30.2009 11:51am
J.R.L.:
"I'm aware of that. But the texting ban is far more justifiable. Its connection to federal highways is far more direct that the minimum drinking age."

Then let the federal highway patrol enforce it.
7.30.2009 11:53am
Goliath of Gath:
This reminds me of when my wife informed me that she was preggers with #4. She stated that she would not insist that I get a vasectomy, but quite earnestly stated that we would never have sex again until I did.

So the decision was really very easy for me, and completely voluntary.
7.30.2009 11:55am
ShelbyC:

...but road safety laws are not about victimless crimes, by definition.


Well, the vast majority of said crimes are victimless.
7.30.2009 11:57am
pete (mail) (www):

But what doesn't make sense is to argue that laws that - by assumption - contribute to road safety are somehow illegitimate as "nanny state" laws.


You are arguing on a libertarian website. Many of the commentators are more insterested in making sure that the laws are internally consistent with libertarian ethics, which means that the government can only punish behavior after a harm has been committed because it lacks the moral authority to do otherwise. Under that philosophy, the government has no business punishing someone for texting until after they have harmed someone else and then they should only be punished for the harm, not for the fact that texting contibuted to it.

I do not agree with this approach to law and government, which is why I am not a libertarian even though I agree with libertarians on many other issues since I think one of the main function of goverment should be to maintain order before harm occurs, but many if not most libertarians have this approach to laws and government.
7.30.2009 12:00pm
J.R.L.:
"Yes you can, but road safety laws are not about victimless crimes, by definition."

No. They are about revenue generation.
7.30.2009 12:01pm
CJColucci:
This reminds me of when my wife informed me that she was preggers with #4. She stated that she would not insist that I get a vasectomy, but quite earnestly stated that we would never have sex again until I did.

So the decision was really very easy for me, and completely voluntary.


So, does your wife miss the sex?
7.30.2009 12:03pm
martinned (mail) (www):

Well, the vast majority of said crimes are victimless.

Good point...

But then, what would you propose to do? Assuming - still - that driving while texting does impose an externality on other road users in the form of increased risk of collision, and assuming that this externality is significant, what other way is there to fix this?
7.30.2009 12:03pm
Cloudesley Shovell:
There seem to be two camps here: (1) The Constitution creates a federal gov't of strictly defined and limited powers, and Congress has no power not explicitly granted it. Nowhere does the Constitution grant the federal gov't the power to regulate texting, case closed.

(2) Congress has plenary authority to do anything it wants by any means available so long as those means do not violate some fundamental right. (Whatever those fundamental rights are, the list of them is short, and getting shorter all the time.) Of course Congress can regulate texting via bribery of the states, and in fact anything else it wants to, no matter how trivial. And that penumbra and emenations stuff only applies to abortion, nothing else.

Which camp are you in?
7.30.2009 12:05pm
einhverfr (mail) (www):
martinned:

I think this is one area where I think states should pass these sorts of laws. I don't see why it is the federal government's responsibility to make sure every state has such laws.

I am glad my state bans texting while driving. However, I don't think we need federal legislation to address this issue.
7.30.2009 12:06pm
pete (mail) (www):

Which camp are you in?


Some of us are in camp 1, but realize that the rest of the country (the courts, every recent president, all of congress except for Ron Paul, most if not all state governments, and about 95% of the population) is in camp 2 and that this is not going to change and have learned to deal with it.
7.30.2009 12:10pm
einhverfr (mail) (www):
Cloudesley Shovell:

Congress probably does have the power to enact legislation of this sort. After all, highways could be considered "post roads" since they are generally used for parcel post transport by the USPS and post roads fall under Article 1 powers, the same as the post office. However, I am opposed to the legislation on policy rather than legal grounds. The basic problem is that states are generally responsible for regulating highway safety. Federal mandates to these sorts of rules have the effect of closing off further discussion as to what is optimal and allowing states to make decisions.

For example, imagine trying to lower the state's drinking age to 18 provided that the minor passes an alcohol safety test and is issued a state license. There are reasons to think this might help reduce the problem of irresponsible drinking by 18-21 year olds, but no state can undertake such a program without risking a substantial portion of highway funding. Hence the federal mandate chills experimentation that might provide for better highway safety down the road.

Texting seems like a clear cut case. However why can't the states be trusted to deal with this problem on their own?
7.30.2009 12:14pm
martinned (mail) (www):

Under that philosophy, the government has no business punishing someone for texting until after they have harmed someone else and then they should only be punished for the harm, not for the fact that texting contibuted to it.

Economics run amok. (For the record, I'm an economist myself.) Or, to be precise, half the story of economics run amok.

If everyone is perfectly rational, then no one would ever voluntarily cause an accident, since an accident is a strictly dominated outcome. (Unless I'm overlooking some possible scenario in which causing an accident is rational. Murder for hire maybe?) Since everyone is perfectly rational, and accidents are strictly suboptimal, no one ever causes an accident and therefore no accidents ever occur. It follows that there is no need to punish people for causing accidents, if for no other reason than that they already have a strong incentive not to cause accidents.

Clearly thinking about car accidents in terms of outcomes is ridiculous. After all, we most certainly do have car accidents. The better analysis is to analyse the problem in terms of voluntary acceptance of risk of an accident.

Voluntary acceptance of 100% risk is still strictly dominated. Accepting 0% risk might be impossible, but even if you stay at home all day, someone might still crash their car into your house. Let's say 0% risk is prohibitively costly.

Since 0% risk and 100% risk are both unattractive, the optimum must lie somewhere in between, as defined by the locus where marginal costs of risk reduction and the marginal benefit are equal. Etc. etc. etc. (I don't feel like typing out the rest of the analysis, since it is perfectly obvious.)

Since thinking about traffic accidents in terms of risk is the only sensible approach economic science has to offer, it follows that DUI or driving while texting is certainly not victimless, even when no accident occurs. The victims are all other road users in the driver's vicinity, who have suffered an increased risk of accident.

This is not a "nanny state", "control everything" analysis. I haven't talked about the state yet at all. (Somewhere in the bit that I omitted, there would have to be a paragraph about Coase.) Given the assumption that texting while driving imposes a significant externality on other drivers in the form of increased risk of accident, strict, by the book, economic analysis shows that the total amount of risk will be inefficiently high, and that some legal instrument will have to be devised to force drivers to internalise these costs, as long as the costs of operating the instrument are lower than its contribution to total welfare.
7.30.2009 12:19pm
Goliath of Gath:
CJ:

No, like the states, I accepted the offer I could not refuse. Snip-snip, a bag of frozen peas, and a weekend of watching football on the couch. Just me and my buddies, the states who know when to voluntarily act.
7.30.2009 12:21pm
martinned (mail) (www):
@einhverfr: Since you asked, and as I noted in my very first comment in this thread, I think these kinds of laws go against the spirit of federalism, even if they're almost certainly not unconstitutional under the Supreme Court's case law. I don't see why state legislatures can't be trusted to enact minimum drinking laws, DUI laws, texting while driving laws, speed limits, etc. etc. etc. as they see fit and as fits the circumstances of their state.
7.30.2009 12:22pm
ShelbyC:

Assuming - still - that driving while texting does impose an externality on other road users in the form of increased risk of collision, and assuming that this externality is significant, what other way is there to fix this?


I don't know. FWIW, I'm not necessarily againt laws that punish imposing risk, I just think it's worth mentioning that that's what we're trying to regulate. And we don't do always do a very good job, for example I probably cause more risk if I drive 50 miles to go hiking than if I drive a mile to a bar, have 5 or 6 drinks and drive home.

The obvious answer to your question is to punish people for causing traffic accidents, btw.
7.30.2009 12:22pm
DCP:


What's next? No drunk driving?


I would gladly wager every penny I own that I could drink enough beer to raise my BAL to .08 and still outperform any 16 year old girl texting on her phone in any sort of road test.

Hell, I could probably drink a 12 pack and outperform Jeff Gordon if he was trying to type some inane garble into a tiny phone while driving.

Not that I'm endorsing drunk driving or anything.
7.30.2009 12:27pm
martinned (mail) (www):

The obvious answer to your question is to punish people for causing traffic accidents, btw.

No it's not. (See my later comment.)


I probably cause more risk if I drive 50 miles to go hiking than if I drive a mile to a bar, have 5 or 6 drinks and drive home.

But the increased risk (not to mention congestion) you cause by driving more is hopefully included in the variable component of your driving costs, such as the costs of fuel, possible tolls, etc.
7.30.2009 12:29pm
pete (mail) (www):

Economics run amok. (For the record, I'm an economist myself.) Or, to be precise, half the story of economics run amok.


Actually I think it is more philosophy run amok. The issue is where the moral authority of the government comes to regulate since it uses violence (police, courts etc) to enforce regulaations. Many libertarians believe that it only legitimately comes as a response to other forms of violence. The economics of it does not come into the moral calcuation since tehy think it is a priori immoral for the government to initiate the use of force to get someone to not text while driving no matter how much harm it would possibly prevent.
7.30.2009 12:29pm
martinned (mail) (www):
@DCP: Not to mention driving while sleep deprived. That's only illegal for truck drivers, if I'm not mistaken, and yet it is apparently at least as dangerous as DUI. I guess the problem with that one is that it is impossible to enforce except with a tachometer.
7.30.2009 12:31pm
Thorley Winston (mail) (www):
@Oren: What does the income tax have to do with this?


Where do you think the Feds get the money to blackmail/extort/bribe the states with?


Well in this case since we're talking about withholding federal highway funds, the money is likely being raised through the federal gasoline excise tax which isn't an income tax. When we studied Dole in Con Law, IIRC the case turned on Congress' Article 1, Section 8 power to Tax and spend for the General Welfare which exists independent of the Sixteenth Amendment.

But I agree with your larger point that the Sixteenth Amendment was a bad idea.
7.30.2009 12:33pm
Clayton E. Cramer (mail) (www):
Idaho already has a law banning inattentive driving. If this isn't sufficient, what is?

I will tell you that Utah is trying hard to take away California's "worst drivers" award. I was through there a while back, and among many insane things I saw, was someone driving a moped in rush hour traffic at 60 mph, no helmet, while texting.
7.30.2009 12:34pm
martinned (mail) (www):
@pete: Do you think so? My impression with libertarians (with whom I agree on many topics, btw) is that they tend to abuse economics the same way originalists tend to abuse history. After all, the original founders of libertarian thought, such as Adam Smith, Jeremy Bentham and J.S. Mill were all to some extent economists as well. (When I talk about maximising total welfare, what I'm talking about is essentially utilitarianism.)
7.30.2009 12:35pm
JoeSixpack (mail):
The texting ban is only connected to federal highways insofar as it bans texting while driving on federal highways. Otherwise it is just more blackmail/bribery and while I don't question the fed gov's right to do strictly as a matter of law under the constitution and SC decisions, when people talk about the federal government reaching too far and involving itself too much in people's day to day lives, this is the kind of thing they are talking about.
7.30.2009 12:36pm
Oren:


Why is the "connection" to Federal Highways relevant at all.

Because "conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.'" South Dakota v. Dole.

An interesting piece of dicta ...


It's not a bribe, it's extortion. The feds take money in taxes from the citizens of the various states

Pursuant to the consent of their elected representatives and by authority explicitly granted by the 16A.


Nonsense. If I have the power to spend a twenty or not spend a twenty, it still does not follow that I can spend my twenty whenever I want and for whatever reason I choose--like, bribing a cop, for example.

Because there is an explicit law forbidding bribery of peace officers. Please show me the explicit constitutional guarantee that Congress may not spend money to induce the States to take actions that are within State, but not Congressional, power.


I'm amazed how few of you understand that Extortion [sic] is bad, Federal Government or no.

Not everything that is bad (and, as I've said, I would vote against it) is unconstitutional.


Oren, I would argue that the 10A requires the feds to apportion money without regard to state laws.

But the 10A talks about powers not delegated, not the spending power, which was delegated to Congress.

IOW, the States have the power to regulate driving because of the 10A. That doesn't mean that they have the power to dictate to the Federal gov't how to exercise their spending power.


Simply driving imposes an externality on other road users.

After you've purchased insurance, that externality is entirely paid-for.


You are arguing on a libertarian website. Many of the commentators are more insterested in making sure that the laws are internally consistent with libertarian ethics, which means that the government can only punish behavior after a harm has been committed because it lacks the moral authority to do otherwise.

This is a gross misstatement of libertarian ethics. Subjecting someone to risk of life or limb is harm.
7.30.2009 12:38pm
martinned (mail) (www):

Idaho already has a law banning inattentive driving. If this isn't sufficient, what is?

I suppose that depends on how hard it is for the government to prove that texting while driving maxe one "inattentive". If a significant percentage of drivers who are caught texting manage to prove that they were not inattentive, I imagine the feds would be upset.
7.30.2009 12:39pm
ShelbyC:

The victims are all other road users in the driver's vicinity, who have suffered an increased risk of accident.


But that risk, at the time of allocating punishment, is 0.
7.30.2009 12:39pm
MCM (mail):
Yes. Texting while driving on a public road is EXACTLY what gets my hackles up. Not ridiculous copyright extensions or warrantless wiretapping or bans or the war on drugs. Texting while driving is what kills me.
7.30.2009 12:41pm
Oren:

(1) The Constitution creates a federal gov't of strictly defined and limited powers, and Congress has no power not explicitly granted it. Nowhere does the Constitution grant the federal gov't the power to regulate texting, case closed.


Yup, if the case was "can the Federal government pass a law banning texting".

Since they aren't, perhaps you might want to focus on the actual case at hand -- can Congress make spending* conditional on State Law. I respect AF's assertion that the 10A prohibits such a condition, despite disagreeing with it.

On the other hand, I have little respect for the silly contention that this law is about Congress' power to regulate texting. It's not, it's about the spending power, not the regulatory power.

*Spending that, in the absence of such coercion, would be conceded as constitutional. If you want to argue about whether the Fed can build the interstate in the first place, well, that's a different thread.*
7.30.2009 12:41pm
Oren:

But that risk, at the time of allocating punishment, is 0.

Perhaps you do not understand the concept of risk.

If I take a revolver, put in a bullet, spin the chamber and pull the trigger in front of your face, I have materially harmed you irrespective of whether a bullet comes out. This is fairly evident from the fact that you would have to pay someone a considerable sum to voluntarily submit to such an act.

There is always a 1/6th probability that a roll of the dice turns out to be 6, even if it really turned out to be 4.
7.30.2009 12:43pm
martinned (mail) (www):

But that risk, at the time of allocating punishment, is 0.

Like Oren said: Why is it the time of allocating punishment that matters? By that argument, attempted murder should be legal, since either someone died (= actual murder) or everybody lived, in which case there is no reason for the government to do anything.
7.30.2009 12:46pm
Oren:

Well in this case since we're talking about withholding federal highway funds, the money is likely being raised through the federal gasoline excise tax which isn't an income tax. When we studied Dole in Con Law, IIRC the case turned on Congress' Article 1, Section 8 power to Tax and spend for the General Welfare which exists independent of the Sixteenth Amendment.

Yup, that's right. My mistake and many thanks for setting me right.
7.30.2009 12:46pm
pete (mail) (www):

My impression with libertarians (with whom I agree on many topics, btw) is that they tend to abuse economics the same way originalists tend to abuse history.


I think modern libertarians often make a priori assumptions about what it is moral for the state to do (never iniate the use of force) and then look for a posteriori (i.e. economics) justifications to back up their arguments.

Sometimes this is fairly convincing like with the war on drugs (government has no right to regulate what drugs we use and the war on drugs hurts more than it helps) sometimes it is not so convincing (government has no right to regulate what we do while we drive and punishing texting does not make us safer).

But I may be biased since my background is much more in philosophy and ethics than economics.
7.30.2009 12:48pm
ShelbyC:

Perhaps you do not understand the concept of risk.


I believe I do, it is a way for calculating for the unknown. In your russian roulette example, you would have to pay the person less money if they know that the chamber is empty, for example. And your example is "in front of my face." If you do it behind my back, the gun doesn't go off, and I never know about it, it's hard to see how I have been materially harmed. Similarlly, the probability of a dice roll being 6 is 100% certain if you know all the vectors involved and can do the math, but since we don't, we say it's 1/6th.

Risk is about information or lack thereof. And when we pusnish someone for imposing risk, we already know the outcome.
7.30.2009 12:50pm
JK:

I can absolutely argue an ethical case against victimless crime laws.


Or more precicely, laws against imposing risk (or that purport to regulate imposing risk)


I'm sure you'll feel the same way when someone sets up a firing range next to, and firing towards, your children's playground. I mean until they actually hit one of the little buggers they're just "imposing a risk" right, not actually "causing a harm" right?

Not that it even matters, as Oren artfully points out, but no one seems to get, if congress has plenary power to spend money on highways, then they can impose whatever restrictions they want on the states. If they don't have the power to spend money on highways then you should be complaining about highway spending in general, and not on specific conditions.
7.30.2009 12:54pm
MCM (mail):
I believe I do, it is a way for calculating for the unknown. In your russian roulette example, you would have to pay the person less money if they know that the chamber is empty, for example. And your example is "in front of my face." If you do it behind my back, the gun doesn't go off, and I never know about it, it's hard to see how I have been materially harmed. Similarlly, the probability of a dice roll being 6 is 100% certain if you know all the vectors involved and can do the math, but since we don't, we say it's 1/6th.

Risk is about information or lack thereof. And when we pusnish someone for imposing risk, we already know the outcome.


I think Oren was right.
7.30.2009 12:58pm
ShelbyC:

By that argument, attempted murder should be legal, since either someone died (= actual murder) or everybody lived, in which case there is no reason for the government to do anything.


By that argument, it should. If the criteria is that govt should only punish harmful outcomes then attempted murder absolutely should be legal. But I believe we punish attempted murders because, for various reasons, we feel we should punish people who attempt to cause harm, regardless of the actual harm or even the risk that they might cause harm.
7.30.2009 12:58pm
pete (mail) (www):

This is a gross misstatement of libertarian ethics. Subjecting someone to risk of life or limb is harm.


I think so, but many libertarians do not think it is a harm that the government has a right to regulate. Go back and read the various volokh conspiracy postings for instance when talk of drunk driving comes up. Some libertarian posters here do not think that drunk driving should be punished by the government unless someone is directly harmed by it through an accident. Same thing like with speed limits and other driving regulations.
7.30.2009 12:59pm
ShelbyC:

I think Oren was right.


Let's hear your explaination then.
7.30.2009 1:00pm
SuperSkeptic (mail):
Don't be silly. The enactment of road safety laws is a legitimate activity for any government, no matter how libertarian. Driving under the influence, and other unsafe driving practices, impose an externality on other road users.

Here's those "pesky externalities" we were talking about yesterday popping up again...everytime I think I can walk out my door, turns out that's an externality that justifies the regulation of my steps.

Size 13s are clunky, I trip sometimes...you guys let me know when Schumer outlaws em due to the externalities that occur because I may fall into somebody
7.30.2009 1:07pm
Oren:

Similarlly, the probability of a dice roll being 6 is 100% certain if you know all the vectors involved and can do the math, but since we don't, we say it's 1/6th.

As a computational physicist IRL, I am very sad to hear that people still believe in this kind of constructionist nonsense. The most concise statement of this was by one of my favorite physicist, Phil Anderson, in a Nature paper a while back.

The ability to reduce everything to simple fundamental laws does not imply the ability to start from those laws and reconstruct the universe..The constructionist hypothesis breaks down when confronted with the twin difficulties of scale and complexity. At each level of complexity entirely new properties appear.


I believe wholeheartedly that the behavior of the dice is entirely controlled by simple laws (most physicists are materialist reductionists after all), so this isn't some metaphysical or quantum mechanical trickery. It is a simple realization that the behavior of large interacting aggregates cannot be derived from the properties of the individual particles but is sui generis (to borrow a nice phrase from my legal buddies).

Rant over, continue your normal business.
7.30.2009 1:09pm
SuperSkeptic (mail):
Testify brother Jawats!
7.30.2009 1:10pm
martinned (mail) (www):

Here's those "pesky externalities" we were talking about yesterday popping up again...everytime I think I can walk out my door, turns out that's an externality that justifies the regulation of my steps.

Which is why it is important not to forget to consider whether the costs imposed by the proposed law are less than the harm prevented.
7.30.2009 1:11pm
Oren:

If you do it behind my back, the gun doesn't go off, and I never know about it, it's hard to see how I have been materially harmed.

Because you had 1/6th chance of losing your life!


And when we pusnish someone for imposing risk, we already know the outcome.

Except that we can prospectively impose a regulation that will reduce the risk.

For instance, if driving when legally blind is illegal then we are prospectively reducing the risk that a blind person will, in the future, run someone over by deterring him from taking the risky behavior.

The retrospective punishment can just as well be recast as a prospective deterrent (which, IMO, indicates the entire lack of distinction when you are talking about imposing risks).
7.30.2009 1:12pm
martinned (mail) (www):
@Oren: xkcd.
7.30.2009 1:12pm
Oren:

@Oren: xkcd.

Grrr, that joke is so overused in the physics building.

Plus, I work on many-body physics, so we're way ahead of that anyway.
7.30.2009 1:15pm
MCM (mail):
Risk is about information or lack thereof.


That's uncertainty. Not risk. Different concepts. Risk is just probability of event times impact of event.
7.30.2009 1:18pm
ShelbyC:
Oren, the only difference between what you said and what I said is that you say, in the dice roll scenario, that we can't know the outcome and you say that we don't know the outcome. I agree that there are scenarios complex enough that we can't calculate the outcome (or that the most efficient way to calculate the outcome is to let the outcome happen), and dice rolls might be one of those.


Because you had 1/6th chance of losing your life!


I had 0 chance of losing my life! The chamber was empty.
7.30.2009 1:19pm
MCM (mail):
I also have to echo Oren's explanation that you could never pre-determine the result of a fair die roll. For a simple explanation, if you read The Black Swan by Taleb, he explains that it's impossible to calculate, for example, a billiard ball's course past 2 bounces or so, and even then it's with highly increasing uncertainty. You'd have to know the location of every atom in the universe at the time of the wall bounces. And that's just in two dimensions, really. A three dimensional die-roll predetermination is totally impossible.
7.30.2009 1:21pm
ShelbyC:

That's uncertainty. Not risk. Different concepts. Risk is just probability of event times impact of event.


And any probability except 0 or 1 is uncertain. And it only becomes certain once I know the outcome.
7.30.2009 1:23pm
einhverfr (mail) (www):
What confuses me in this debate is the number of folks who think that sending text messages on a cell phone, despite evidence that this causes safety issues, should be entirely unregulated. You can make a case that seatbelt laws, insofar as the harm done to OTHERS is indirect, are an unnecessary infringement on liberty (and I do make this argument, since if you drive a LOT with infants in the car, it is often good to get them out of the car seat to change diapers, feed them, etc. and if you are driving long distances, it is impractical to fight a ticket on these grounds).

However, here we are talking about the increased chance that the driver will hurt or kill someone else. If texting isn't subject to regulation on this basis, it is hard to understand how driving 100mph in a 20mph school zone could be regulated.
7.30.2009 1:27pm
SuperSkeptic (mail):
Matinned,

But it's like Pete said, costs shmosts. The ethic is irrelevant and prior to costs. If I crash into you, why not use the evidence of my texting as negligence or even criminal negligence? Taken to its logical extreme, everything, literally everything, imposes some sort of vague externality because we're all here together. If we believe in liberty, it's not at all about cost/benefit.
7.30.2009 1:28pm
einhverfr (mail) (www):
(not that I support a FEDERAL law to this effect, but I think the issue is how we value federalism, not whether texting bans are per se bad ideas)
7.30.2009 1:29pm
ShelbyC:

I also have to echo Oren's explanation that you could never pre-determine the result of a fair die roll. For a simple explanation,


Are you guys making the distinction between whether you can determine something and whether we have
determined something? To use the russian roulette example, the probablity is 1/6 of killing the guy before you spin the cylinder. But after you spin the cylinder, it is still 1/6, right? Even though you can know the outcome just by looking in the chamber. And when you look in the chamber, the probability becomes 0 or 1, right?

I agree that some thinks are unknown, others are unknowable. But I'm not sure why the distinction matters in this context?
7.30.2009 1:29pm
MCM (mail):
And any probability except 0 or 1 is uncertain. And it only becomes certain once I know the outcome.


No.

Regardless, risk means one thing and uncertainty means something else. You mistook risk for uncertainty. They are distinct concepts.
7.30.2009 1:30pm
Oren:

I had 0 chance of losing my life! The chamber was empty.

You are confusing the posterior probability with the prospective probability. The risk is concerned with the prospective probability of some harm (multiplied by the magnitude of the harm, summed over all harms).

That is, it is concerned with the chance of an event happening -- not with the actual (random) outcome.
7.30.2009 1:31pm
einhverfr (mail) (www):
SuperSkeptic:


But it's like Pete said, costs shmosts. The ethic is irrelevant and prior to costs. If I crash into you, why not use the evidence of my texting as negligence or even criminal negligence? Taken to its logical extreme, everything, literally everything, imposes some sort of vague externality because we're all here together. If we believe in liberty, it's not at all about cost/benefit.


I agree with that last point, btw. That is one reason I oppose seatbelt laws. Furthermore, I would oppose laws banning hands-free cell phone use.

However, in this specific case, I think the added dangers are sufficient to override the liberty interest, if we are talking about STATE law. I think a federal law is a bad idea though.
7.30.2009 1:33pm
Oren:

To use the russian roulette example, the probablity is 1/6 of killing the guy before you spin the cylinder.

If the shooter always puts the bullet in the same chamber, the probability (that is, the asymptotic quotient of number of guys killed versus number of shots fired) is not 1/6. Spinning is required to "erase" that knowledge of whether the chamber being fired has the bullet.


Even though you can know the outcome just by looking in the chamber. And when you look in the chamber, the probability becomes 0 or 1, right?

It's kind of hard to look in the chamber of my revolver without swinging it out.


I agree that some thinks are unknown, others are unknowable. But I'm not sure why the distinction matters in this context?

Well, it's easier to prove that a die roll is unknowable than it is unknown (and the latter follow from the former).

Same for the position of the bullet in a revolver after a sufficiently random spin.
7.30.2009 1:35pm
ShelbyC:

Regardless, risk means one thing and uncertainty means something else. You mistook risk for uncertainty. They are distinct concepts.


Fine, maybe I was impercise. Probability is about knowelege or lack therof, risk is about knowelege or lack therof * impact of said knowelege. Better?
7.30.2009 1:40pm
Gabriel McCall (mail):
The drinking-age highway funds case, South Dakota v Dole, turned in part on the fact that the funding difference was only 5%, and thus was considered pressure rather than compulsion:

Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which "pressure turns into compulsion." Here, however, Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner contends that the coercive nature of this program is evident from the degree of success it has achieved. We cannot conclude, however, that a conditional grant of federal money of this sort is unconstitutional simply by reason of its success in achieving the congressional objective.

When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact.


I think there's a strong argument to be made that a 25% penalty distinguishes the texting bill from the prior case law. It might also be interesting to make a case that the totality of federal conditions on highway amount to coercion to comply with at least some conditions. If a state scorned all of DC's "requests" on which highway funds are conditioned, how much would they lose?
7.30.2009 1:43pm
MCM (mail):
Fine, maybe I was impercise. Probability is about knowelege or lack therof, risk is about knowelege or lack therof * impact of said knowelege. Better?


Not exactly... risk is about probability and impact. Uncertainty is about our inability to actually know what the probabilities and impacts are.

For example, there's always a 1/6 risk of a fair die coming up 6. We know it has 6 sides numbered 1,2,3,4,5,6. If we didn't know what the sides were numbered, or if we didn't know how many sides there actually were, we'd be uncertain about the risk.
7.30.2009 1:44pm
Gabriel McCall (mail):
What confuses me in this debate is the number of folks who think that sending text messages on a cell phone, despite evidence that this causes safety issues, should be entirely unregulated.

And this is why the anti-federalists were right all along. Arguing that addressing a specific concern is not a proper function of the federal government is not synonymous with arguing that it should be "entirely unregulated".
7.30.2009 1:46pm
ShelbyC:

For example, there's always a 1/6 risk of a fair die coming up 6. We know it has 6 sides numbered 1,2,3,4,5,6. If we didn't know what the sides were numbered, or if we didn't know how many sides there actually were, we'd be uncertain about the risk.


What's the probability of the next card in the deck being and A of hearts? 1/52, or is in uncertain?
7.30.2009 1:49pm
Seattle Law Student (mail):
einhverfr

That is one reason I oppose seatbelt laws.


Right, but can you guarantee me that your heirs and now ex-spouse won't sue me for your death? Or that I won't get prosecuted for unintentional homicide when you die as a result of the accident. Raising an affirmative defense that you assumed the risk won't get me very far in a state with joint and several liability.

I get the point that regulating based on externalities is a problem. But there are situations such as this where your marginal liberty interest to not wear a seatbelt does not by any rational calculation outweigh the overall public benefit of fewer fatalities. Totaled car vs. death + totaled car = a no Brainer.
7.30.2009 1:49pm
martinned (mail) (www):

But it's like Pete said, costs shmosts. The ethic is irrelevant and prior to costs. If I crash into you, why not use the evidence of my texting as negligence or even criminal negligence?

If that were enough to cure the problem of misaligned incentives, that would be preferable. However, it probably isn't, both because people may not be that rational, and because relative the the costs of being in an accident, the additional costs of possible additional liability may not be enough. Not to mention the additional transaction costs created by making tort liability laws more complex. (Proving that someone was texting is easy if they get caught by the cops, but slightly harder after they and their car have just been totalled in an accident.)

@ShelbyC: The classical distinction between risk and uncertainty, as introduced by Frank Knight in the 1920s, is that risk is a situation with a known probability distribution, whereas uncertainty has no known probability distribution. (The relevant passage from Risk, Uncertainty and Profit is here.) So Russian roulette has significant risk, whereas the problem with starting your own dot com company is more uncertain than risky.
7.30.2009 1:51pm
Guest14:
The proper approach would be for drivers to contract with other drivers not to text while driving. If anyone breached, they could be sued in court.
7.30.2009 1:53pm
Oren:

And this is why the anti-federalists were right all along. Arguing that addressing a specific concern is not a proper function of the federal government is not synonymous with arguing that it should be "entirely unregulated".

You are right -- addressing the concern of texting is not a proper function of the Federal government. Unlike, say, building a Federal Highway system.

Let me ask a different question. Suppose that Congress did not add the restriction but that the Executive official (head of the NHTSA) simply refused to authorize any new highway projects in States that did not have texting laws as a matter of discretionary spending, not mandate. Does that change things?


What's the probability of the next card in the deck being and A of hearts? 1/52, or is in uncertain?

To the extent that you believe the deck is fair and was shuffled sufficiently, 1/52.
7.30.2009 1:55pm
Thorley Winston (mail) (www):
Question for the peanut gallery: assume that we removed the federal government from the equation entirely and this were left up entirely to States (which I think it should be) -- which would be preferable:

a) A State that passes an explicit ban on texting while driving; or
b) A State that has a general statute that bans "inattentive driving" but leaves it up to each individual LEO to determine on a case-by-case basis whether a driver was driving "inattentively without specifically prohibiting doing certain activities while driving; or
c) A State that has both.

I'm curious to learn which people thing is better: to have a specific statute that is more cut and dried because it prohibits a specific a activity or a more general statute that may be enforced differently because of how a particular LEO may interpret it.
7.30.2009 1:55pm
Oren:

The proper approach would be for drivers to contract with other drivers not to text while driving. If anyone breached, they could be sued in court.

Maybe the drivers could delegate writing a uniform contract (gotta control transaction costs) to some sort of representative body, let's call it a "legislature". The "legislature" could then be empowered to enforce the uniform contract in the court on behalf of its clients.
7.30.2009 1:56pm
ShelbyC:

The classical distinction between risk and uncertainty, as introduced by Frank Knight in the 1920s, is that risk is a situation with a known probability distribution, whereas uncertainty has no known probability distribution.


Then I don't think I confused the two. A probability distribution is based on availabile information.
7.30.2009 1:56pm
martinned (mail) (www):


The proper approach would be for drivers to contract with other drivers not to text while driving. If anyone breached, they could be sued in court.

Maybe the drivers could delegate writing a uniform contract (gotta control transaction costs) to some sort of representative body, let's call it a "legislature". The "legislature" could then be empowered to enforce the uniform contract in the court on behalf of its clients.

Coase rules!
7.30.2009 1:57pm
Oren:
Thorley, are we talking about a State in which routine moving violations are civil (e.g. MA) or criminal (e.g. IL) . That makes a big difference, IMO, because the dangers of a vague law go up considerably when combined with the lowered burden of proof and diminished procedural protections of a civil trial.
7.30.2009 1:58pm
MCM (mail):
What's the probability of the next card in the deck being and A of hearts? 1/52, or is in uncertain?


Assuming it's a fair deck, yes, 1/52. Now, if you have some doubts about whether it's a fair game, then there is uncertainty.
7.30.2009 1:58pm
Fub:
Clayton E. Cramer wrote at 7.30.2009 12:34pm:
I will tell you that Utah is trying hard to take away California's "worst drivers" award. I was through there a while back, and among many insane things I saw, was someone driving a moped in rush hour traffic at 60 mph, no helmet, while texting.
Damn, I always miss out on the fun! I've been driving cars, motorcycles and bicycles in CA for well over 40 years. But I've never seen anything even close to that one.

Unless a close order drum and bugle drill team of 10+ foot tall unicycles counts. But they were in a parade, not rush hour traffic.

Sure would like to know where folks in Utah get their mopeds that will do 60 mph, but I'm not going to move there just to find out.
7.30.2009 2:03pm
Diversionary Tactic:
Schumer knows the way to the heart of seniors. Kids these days!
7.30.2009 2:05pm
ShelbyC:
Anyway, I learned these concepts in B-school. It sounds like they teach them differently in the math department :-).
7.30.2009 2:09pm
martinned (mail) (www):

Anyway, I learned these concepts in B-school. It sounds like they teach them differently in the math department :-).

They don't teach Knight in Business school? His theory, which is a nice alternative to the mainstream, was that the key skill of the entrepreneur was in exploiting uncertainty. Assets that are risky, but do not have any uncertainty, are so easy to price that there's no real money to be made in them. Uncertainty is where the profit is.
7.30.2009 2:13pm
Gabriel McCall (mail):
You are right -- addressing the concern of texting is not a proper function of the Federal government. Unlike, say, building a Federal Highway system.

If addressing the concern of texting is not a proper function of the Federal government, then it has no business addressing that concern in its decisions regarding highway construction. Since the spending power is tied to the Common Defense and General Welfare, you would have to make the case that a road on which texting is outlawed serves those ends (or else you can't fund it anyway) and also that a road on which texting is legal does NOT serve those ends... because if you are refusing to fund an activity which you have already asserted serves the Common Defense and General Welfare then you are sacrificing Common Defense and General Welfare for an issue in which there is no proper federal concern.

Let me ask a different question. Suppose that Congress did not add the restriction but that the Executive official (head of the NHTSA) simply refused to authorize any new highway projects in States that did not have texting laws as a matter of discretionary spending, not mandate. Does that change things?


The executive has a duty to take care that the laws be faithfully executed. If Congress says build a road, under what theory can the NHTSA say "not gonna, until they do X"?
7.30.2009 2:14pm
Aultimer:

pete

Some libertarian posters here do not think that drunk driving should be punished by the government unless someone is directly harmed by it through an accident.

I'm one of them. It's not that I object to the government punishing accident-free drunk drivers entirely, it's that the police use it as a pretext for many other intrusions and that there's no sensible cost-benefit analysis of what other stuff the police could be doing/stopping.

As a policy matter, I think texting bans may be more beneficial than drunk driving laws. I've witnessed some scary driving caused by cell phones. But the only reason the police like these laws is that they're easy to enforce (phone record checks are easier than BAC tests, with a little infrastructure in place).

As soon as there's a blood test for sleepiness, you'll see the police clamoring for a law against driving sleepy, etc.
7.30.2009 2:19pm
David Chesler (mail) (www):
Setting aside the philosophical questions of federal vs. state, and whether there can be a behavior so risky that it is worthy of punishment (either per se, or in an enhanced tort penalty when the harm occurs), the discussion has barely (acknowledging einhverfr's and Thorley's comments, and einhverfr's earlier remark about foreign language tapes) mentioned the riskiness of this particular behavior.

I can't be drunk when the light is red or traffic is light, and get sober when the light turns green or traffic gets gnarly. I do text while driving. I don't find skimming an incoming message more distracting than reading a billboard or my speedometer, and sending even less so, because I mostly touch-type and stop the instant I have to do something else. That's why I like text better than voice: in a voice conversation the other party expects real-time responses, but text can wait.

Qualification: When I'm not a programmer I'm a school bus driver (though any cell phone use was prohibited last time I did that) and I have a pretty good driving record over the past 20 years or so.
7.30.2009 2:20pm
ShelbyC:

They don't teach Knight in Business school? His theory, which is a nice alternative to the mainstream, was that the key skill of the entrepreneur was in exploiting uncertainty. Assets that are risky, but do not have any uncertainty, are so easy to price that there's no real money to be made in them. Uncertainty is where the profit is.



Don't remember Knight, but we sure do learn about uncertainty and risk.
7.30.2009 2:22pm
ShelbyC:
And when we issue a ticket for putting someone at risk, btw, base on these definitions, there is 0 uncertainity, and 0 risk, correct?
7.30.2009 2:24pm
Aultimer:

einhverfr

What confuses me in this debate is the number of folks who think that sending text messages on a cell phone, despite evidence that this causes safety issues, should be entirely unregulated.

So you think every activity that "causes safety issues" should be federally regulated? State regulated? What amount of safety improvement is required before the state should obviously step in? Is real scientific measurement required, or is a convincing lie from a Congressman enough?
7.30.2009 2:24pm
Aultimer:

Oren:

Maybe the drivers could delegate writing a uniform contract (gotta control transaction costs) to some sort of representative body, let's call it a "legislature". The "legislature" could then be empowered to enforce the uniform contract in the court on behalf of its clients.

Assuming no liquidated damages, I'm fine with this suggestion. The "client" has to prove damages, no government thug can use it as a pretext to infringe the parties' liberty and no jail time even if damages are proven.

Not quite what's on the table though, is it?
7.30.2009 2:30pm
J.R.L.:
"By that argument, it should. If the criteria is that govt should only punish harmful outcomes then attempted murder absolutely should be legal. But I believe we punish attempted murders because, for various reasons, we feel we should punish people who attempt to cause harm, regardless of the actual harm or even the risk that they might cause harm."

Attempted murder should only be punishable if the attempted murdered could be killed legitimately in self-defense (or defense of others).
7.30.2009 2:31pm
J.R.L.:
"By that argument, it should. If the criteria is that govt should only punish harmful outcomes then attempted murder absolutely should be legal. But I believe we punish attempted murders because, for various reasons, we feel we should punish people who attempt to cause harm, regardless of the actual harm or even the risk that they might cause harm."

Attempted murder should only be punishable if the attempted murderer could be killed legitimately in self-defense (or defense of others).
7.30.2009 2:31pm
martinned (mail) (www):

Attempted murder should only be punishable if the attempted murderer could be killed legitimately in self-defense (or defense of others).

How do you figure that?


Is real scientific measurement required, or is a convincing lie from a Congressman enough?

Having fun playing with your straw men?
7.30.2009 2:37pm
More Productive Advocacy:
The Federal government's action in requiring the states to ban texting to receive Federal highway money would prevent more horribly painful deaths than any effort to allow organ sales.

Yet, libertarians get all dramatic about laws restricting the selling of organs but seem to think that efforts to ban texting while driving are a really bad idea.

For libertarians, the issue is clearly NOT about preventing horribly painful deaths in either case.

QED.

Any emotional appeals to saving lives when libertarians make arguments in favor of allowing the selling of organs should be flagged as insincere.
7.30.2009 2:39pm
Thoughtful (mail):
It's argued that an attempted rights violation is actionable because risk to others increased. So even though no one was harmed, drunk driving, say, should be punishable.

It's also argued that punishment should be increased over the mere costs of damage, or potential damage, to induce the potential rights violator. Since there is only a fractional probability of being caught, the potential rights violator is induced by EXPECTED costs, to wit, the cost of penalty if caught times the probability of being caught. Therefore, if 1 year in prison with certainty would deter, then we should punish with 2 years if the chance of being caught and convicted is only 50%.

Isn't this some form of doubling counting? First even if no harm occurred, you're held punishable due to the risk that harm might have occurred. Then you're punished more than the harm would justify even if it had occurred because other people who engaged in risky acts that in fact harmed no one were not punished at all?

This system is rigged much worse than Vegas...
7.30.2009 2:47pm
A. Zarkov (mail):
When texting is outlawed, only outlaws will text.
7.30.2009 2:50pm
Adam B. (www):
I wanted to go back to this:
Since the cell phone era started, accident rates have gone down in the USA.

Per the FARS Encyclopedia maintained by the US NHTSA,

Fatalities per 100 Million Vehicle Miles Traveled

1994 1.73
2008 1.27

Compare other years, same result.

Sure. Because cars are built safer now -- mandatory dual front airbags from 1998 on, etc.
7.30.2009 2:50pm
A. Zarkov (mail):
"For the record, I'm an economist myself."

You live in sin. One should never admit to such a thing.
7.30.2009 2:52pm
Oren:

Sure would like to know where folks in Utah get their mopeds that will do 60 mph, but I'm not going to move there just to find out.

It's an old trick to get a "moped" that's under the displacement limit (usually 49.9cc) and bore it out to 70-80cc but keep it registered under the much looser qualifications. That way you don't need a motorcycle license.


The executive has a duty to take care that the laws be faithfully executed. If Congress says build a road, under what theory can the NHTSA say "not gonna, until they do X"?

Sorry, my hypothetical was unclear. Congress says "Spend $X on building roads, you (some cabinet-level official) have discretion to decide which roads and where."


Assuming no liquidated damages, I'm fine with this suggestion. The "client" has to prove damages, no government thug can use it as a pretext to infringe the parties' liberty and no jail time even if damages are proven.

Not quite what's on the table though, is it?

The contract, as negotiated by the representatives, calls for liquidated damages -- by what right do you assert the power to deny the parties the right to draft the contract in whatever way they chose?

Effectively we have a contract for use of the public road that:
(a) specifies specific liquidated damages when a violation of the terms is proven.
(b) contains clauses for the revocation of the license to use the public roads (which are held by the parties) upon certain non-performance of specific duties.
(c) charges those that use parties' property without license with criminal trespass.
(d) provides for the enforcement of said obligations by parties' representatives while on parties' property.
7.30.2009 2:55pm
Oren:

Isn't this some form of doubling counting? First even if no harm occurred, you're held punishable due to the risk that harm might have occurred. Then you're punished more than the harm would justify even if it had occurred because other people who engaged in risky acts that in fact harmed no one were not punished at all?

Not if the weighted sum of excess punishment (as retrospective deterrent) plus the prospective punishment (as prospective deterrent) do not exceed the marginal cost of risk.
7.30.2009 2:58pm
J.R.L.:

Attempted murder should only be punishable if the attempted murderer could be killed legitimately in self-defense (or defense of others).


How do you figure that?

Is it not self-explanatory?
7.30.2009 3:05pm
einhverfr (mail) (www):
Aultimer:


So you think every activity that "causes safety issues" should be federally regulated? State regulated? What amount of safety improvement is required before the state should obviously step in? Is real scientific measurement required, or is a convincing lie from a Congressman enough?


I think a weighing needs to take place.

For example, infant car seat and seatbelt laws are laws which together make it remarkably difficult to take a long road trip with an infant without breaking the law. When I do this, I choose to break the law (take the kid out of the car seat to change diapers while the car is moving, etc) rather than expect to stop every 1-2 hours, etc. These laws together, while they work in some circumstances, infringe upon legitimate liberty interests in ways which a rational person would not accept in at least a reasonable set of circumstances.

On the other hand, what liberty interest is infringed on the basis of this texting ban? IMO, the only liberty interest is the liberty interests of the states to weigh the issue themselves. There really are few if any legitimate reasons for sending of text messages on cell phones and the safety issue outweights these.

Now, I oppose bans on mere READING of text messages because there are legitimate reasons why this might be necessary. Furthermore, even though some folk may want to ban handsfree use of cell phones on public roads, I would be opposed to such a ban as well.

If you are going to advocate weighing a liberty interest you should do so before condemning such a ban on that basis alone.
7.30.2009 3:08pm
einhverfr (mail) (www):
jrl:

How about a different approach: Why don't we make all crimes with victims to be mere civil liability issues and allow family members to sue perpetrators?
7.30.2009 3:11pm
Linus (mail):
I understand the concern with texting being less safe, but I also understand the idea of being punished for harm you actually cause, not theoretically cause. So, why not have the law say that if you cause an accident, and texting is proven to be a substantial cause of the accident that a) criminally, you go to jail for 15 years, and b) civilly, the injured party is entitled to 25 times their actual awarded damages at trial. Wouldn't that act as an incentive for people not to text?
7.30.2009 3:15pm
martinned (mail) (www):

How about a different approach: Why don't we make all crimes with victims to be mere civil liability issues and allow family members to sue perpetrators?

Apart from the question of whether that would be enough to correctly align everyone's incentives, the problem is that such a system would have much higher transaction costs (= lawyers' fees).
7.30.2009 3:23pm
Oren:



Attempted murder should only be punishable if the attempted murderer could be killed legitimately in self-defense (or defense of others).

How do you figure that?

Is it not self-explanatory?

Not even close. In fact, it's not only self-explanatory, it's quite easily rebutted.

For instance, I live in a "duty to retreat" (only outside the home, we have a castle-doctrine for within the home). If a crippled man comes at me with a large sword saying "I want to kill you" on the street, I cannot kill him in self-defense but must retreat. ( Since he's crippled, I'm going to stipulate for the purposes of this hypothetical that I can just walk away at a regular pace with absolutely zero risk of harm.)

Clearly he committed attempted murder -- he came at me with a very deadly weapon and the express intent to kill me.

Clearly I couldn't kill him in response since safe retreat was an option.

Which of those two statements has to give?
7.30.2009 3:24pm
martinned (mail) (www):
@Linus: Don't you think that might be a bit excessive? That is generally the problem with Becker's theory of efficient deterrence, which was already mentioned above. For some crimes, straightforward application of the model would suggest executing one purp every year as the optimal course of action. And yet even the Saudis agree that executing someone for shoplifting is excessive.
7.30.2009 3:26pm
Tritium (mail):
Laws don't alter behavior. Even though the intent to to prevent a person from texting while driving, is it really proper to use extortion in order to put these laws in place?
7.30.2009 3:28pm
Aultimer:

einhverfr (mail) (www):

I think a weighing needs to take place.


I think you're saying that if your anecdotal weighing suggests that the liberty interest impaired is slight, you're in favor of regulation over liberty. I weigh the liberty of changing a baby in a moving car much differently than you do - in fact I'm horrified that you value a few minutes of your time over the safety of an infant. But why should my weighing or yours control the other, especially when there are already laws against causing damage with bad driving and against negligently caring for dependents.
7.30.2009 3:40pm
Tritium (mail):
An interesting read, regarding the Treaty Power, where John Marshall (I believe) stated that the general powers (Treaty, Amendments, etc) in the Constitution were limited by the Constitution itself. So nothing in any treaty could permit what was restricted. How far from the tree the congressional fruits have fallen.
7.30.2009 3:41pm
Bob from Ohio (mail):

What confuses me in this debate is the number of folks who think that sending text messages on a cell phone, despite evidence that this causes safety issues, should be entirely unregulated.


Eating in car. Drinking coffee in car. Smoking cigarette in car. Having 2 year old in car. Having radio on in car. Having psssenger in car next to you. Not getting enough sleep the night before.

All these and more cause safety issues. Which ones should be specifically banned by federal law?

There is no evidence that any significant number of accidents are caused by using a cell phone for either voice or texting.

The regulation will do little for public safety but will 1. increase ticket revenue and 2. give police yet one more pretext for stopping people and 3. give publicity hungry politicians publicity.
7.30.2009 3:45pm
Bob from Ohio (mail):

Sure. Because cars are built safer now -- mandatory dual front airbags from 1998 on, etc.


Sure, there is no one single factor that causes all increases or decreases in death rate or accident rate.

But if cell phone/texting was such a horror, there would be some increase recently.

Yet in 2007 it ws 1.36 and in 2008 continued to decline to 1.27. (In fact, that actually is the largest decline, .09 versus .06 from 2006 and .05 in 1996/1997.)

I still submit this is a non-issue.
7.30.2009 3:56pm
JK:


Eating in car. Drinking coffee in car. Smoking cigarette in car. Having 2 year old in car. Having radio on in car. Having psssenger in car next to you. Not getting enough sleep the night before

You folks aren't even looking up the studies that are sparking this discussion are you? Sure, it's not rock solid, it essentially never is with real world behavioral issues, but at the very least the researches purport that they found evidence that shows that texting and talking on a cell phone are substantially more dangerous than talking with a passenger, or passively listening to something. The theory is that it has something to do with the language creation functions of the brain, but with an in-car passenger both parties (driver and passenger) pick up on signals to adjust the conversation to driving conditions.

Now I haven't looked into this enough to know whether I agree with the researchers in this area, but it's not entirely fair to accuse the legislators of pulling this out of their asses (not that they don't pull things out of their asses on a regular basis, or that generally speaking I like to make a habit out of defending the jerks).
7.30.2009 4:27pm
Oren:

Laws don't alter behavior. Even though the intent to to prevent a person from texting while drivingraping his neighbor, is it really proper to use extortion in order to put these laws in place?

Sounds a little different.
7.30.2009 4:29pm
Oren:

I still submit this is a non-issue.

If only you could submit it to some sort of deliberative body for due consideration ... Hmmm ...
7.30.2009 4:30pm
J.R.L.:
martinned,

You have added a variable--duty to retreat.

There should be a balance to the law. Your added variable takes away that balance.
7.30.2009 4:31pm
Gabriel McCall (mail):
Congress says "Spend $X on building roads, you (some cabinet-level official) have discretion to decide which roads and where."

If the execuive is acting under authority delegated by Congress, then it's bound by the same rules. Congress cannot delegate a discretion which it does not itself possess.
7.30.2009 4:35pm
therut (mail):
OH goody the liberal Senator who screamed FEDERALISM about the 2nd amendment and CCW recently is NOW supporting more Federal Laws forcing STATES to do what HE wants!!!! Imagine that!!!!!!!!! Politicians wonder why the PEOPLE find them disgusting. This is an example. Nanny State do gooders are in power on the left.
7.30.2009 4:38pm
Oren:

All these and more cause safety issues. Which ones should be specifically banned by federal law?

The ones that the United States, in Congress Assembled, decide to address.


If the execuive is acting under authority delegated by Congress, then it's bound by the same rules. Congress cannot delegate a discretion which it does not itself possess.

Congress doesn't have the discretion to fund some programs but not others?

If Congress cuts highway spending by 50% (across the board) next year, will the States have cause to sue to restore it?
7.30.2009 4:50pm
Allan Walstad (mail):
Oren:


Nonsense. If I have the power to spend a twenty or not spend a twenty, it still does not follow that I can spend my twenty whenever I want and for whatever reason I choose--like, bribing a cop, for example.

Because there is an explicit law forbidding bribery of peace officers.

Regardless of the "because," your previous statement was nonsense as I pointed out.

Please show me the explicit constitutional guarantee that Congress may not spend money to induce the States to take actions that are within State, but not Congressional, power.

10A obviously does the job, but only as a reminder or reinforcement of what was already well understood: the Constitution was set up to grant the feds only limited powers, with the rest reserved to the states. What you are talking about, that the feds can spend money, so they can spend it any way they like, so they can use federal taxation and spending as a club over the states, is nothing but shyster lawyerism. It's a way to try to evade the clear intent behind the Constitution.

Let's just continue down the same path a bit farther and see where it leads. The feds can regulate interstate commerce. So let Congress demand that all state legislatures pass any and all laws Congress wants them to pass. If any state fails to comply, then all commerce in and out of that state will be subject to a 50% tariff, or it will be held up for one week for inspection, or it will simply be blocked. How's that? It's just a slightly cruder form of the same game of which you approve. If allowed, it places unlimited power in the hands of the feds. Unlimited federal power is what the Constitution was intended to prevent.
7.30.2009 6:00pm
Tritium (mail):
Instead of making it illegal to text while driving, why not make it illegal for not paying attention to the road.

Or is that already a law?
7.30.2009 6:13pm
Oren:


Please show me the explicit constitutional guarantee that Congress may not spend money to induce the States to take actions that are within State, but not Congressional, power.

10A obviously does the job

If it's so obvious, you'd think someone would have even brought up the matter in SD v. Dole. Oh well, onto the merits:

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.

I'm really struggling here. The power to spend money towards the national highway system is not "a power not delegated to the US", how could it possibly implicate the 10A.

Note that the 10A does not say

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 nor shall the powers delegated by the United States be used to induce the Various States to exercise their respective powers.
7.30.2009 6:14pm
Oren:

It's a way to try to evade the clear intent behind the Constitution.

There's your fundamental mistake. You are under the illusion that we are governed by the intent of the Constitution. This is incorrect, since we are, in fact, governed by the Constitution itself.


If any state fails to comply, then all commerce in and out of that state will be subject to a 50% tariff, or it will be held up for one week for inspection, or it will simply be blocked. How's that?

It's in violation of the clear text of the Constitution:

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Whoops, I quoted the actual text of the document instead of engaging in an argument to emotion about the abstract and unknowable intent! I'm surely going to fail Allan's Holistic Law course now!
7.30.2009 6:19pm
Bob from Ohio (mail):

The ones that the United States, in Congress Assembled, decide to address.


So Congress can do anything it wants?

Congress lacks a general police power. Congress cannot even directly ban texting, it has to resort to the spending power to coerce the states.

Try again.
7.30.2009 6:41pm
Leo Marvin (mail):
einhverfr:

So I have a modest proposal regarding highway safety laws.

Modest?
7.30.2009 6:42pm
einhverfr (mail) (www):
Marvin: In the good ol' tradition of Jonathan Swift. Evidently you slept through literature class....
7.30.2009 7:16pm
Tritium (mail):
Just because it's beneficial, doesn't mean Congress should be allowed to do it. By allowing them to exercise powers it doesn't have in times we agree, only gives them more force when they want to do something that isn't so beneficial for us.
7.30.2009 7:20pm
einhverfr (mail) (www):
Bob From Ohio:

Eating in car. Drinking coffee in car. Smoking cigarette in car. Having 2 year old in car. Having radio on in car. Having psssenger in car next to you. Not getting enough sleep the night before.

All these and more cause safety issues. Which ones should be specifically banned by federal law?


None of them. And I oppose this bill.

However, a lot of folks here seem to be saying it shouldn't be banned by a state law either. That was the issue of my comment.

However, let's look at each of these in turn:

Eating in the car. Accident factor minimal (and a lot less than texting), and there is a legitimate liberty interest in being able to eat snacks while driving on long road trips. THe same goes for drinking coffee. Therefore I don't want to see states regulating either of those either.

Having a 2-year-old in a car-- same. Restricting this would mean the 2-year-old could only leave the house in walking distance and that would provide extreme restrictions on personal liberty.

As for not getting enough sleep the night before... What are we going to do? Say "you can't drive to work if you get less than 8 hrs sleep the night before? And you have to keep a logbook?"

Passengers in the front seat? Talking in the car? etc. Same basic issues.

What is unique about texting is that there isn't generally a legitimate reason to do it. So I am not opposed to STATES banning it. I don't want to see the federal government do this however.
7.30.2009 7:25pm
Oren:

Congress lacks a general police power. Congress cannot even directly ban texting, it has to resort to the spending power to coerce the states.

You gave a list of "issues" that the Congress could use the spending power to influence the States and asked which were worthy of inclusion in the highway bill -- I gave you a straight answer.

You are right that Congress may not directly legislate driving, but it's also clear from the Constitution that there is no ban on Congress using the powers delegated to it to pressure the States to exercise the power delegated to them.

If you don't like it, vote for different Reps &Sens (incidentally, I said earlier that, as a matter of policy, I would vote against this amendment -- maybe you should vote for me).
7.30.2009 7:48pm
Oren:

By allowing them to exercise powers it doesn't have

But this is a cut-and-dried exercise of the spending power, a power that no one (AFAICT) is willing to argue is beyond the enumerated power of Congress.

So if Congress has the power to build a road in California and Oregon, why don't they have the right to build a road only in Oregon?
7.30.2009 7:50pm
Leo Marvin (mail):
einhverfr

Evidently you slept through literature class....

No doubt. I've slept through plenty. I've even fallen asleep at the wheel, though as best I can recall, never while texting.
7.30.2009 8:10pm
Tritium (mail):
That would be in the taxing power. Specifically what they can tax for, prevents them from spending in one state over another.

Building in one state over another does nothing for the general welfare.
7.30.2009 8:16pm
Oren:

Building in one state over another does nothing for the general welfare.

So your position is that if Congress builds a bridge in one state, it must build a bridge of equal value in every other State?

I'm starting to be very confused by these contortions. Just because it's a sleazy thing to do (agreed) doesn't make it unconstitutional for the Congress to pick and chose who and where they want to spread the bacon on.
7.30.2009 8:41pm
Tritium (mail):
That's why the states were intended to remain independent from the Federal Government. The States have a power of taxation to provide for its own needs. What is the point of taxing the people in the State of Michigan so that the people in Arkansas can have a bridge? Would it be alright for your property taxes to be used to pay for the police 2 counties over?
7.30.2009 8:56pm
Oren:
Did you switch from a legal argument to a normative one, or are you going to get on the Allan Wallstad Holistic Law bandwagon?

I'm with you on the policy argument (as I said days ago) but just because it's a bad policy doesn't make it unconstitutional (again, so long as you read the actual constitution and not some funny emanation of intent or suchlike).
7.30.2009 9:00pm
einhverfr (mail) (www):
Oren:

But this is a cut-and-dried exercise of the spending power, a power that no one (AFAICT) is willing to argue is beyond the enumerated power of Congress.


Even if spending power must be done in furtherance of other powers (bit if), Congress still has the right to spend money on maintaining post roads under article 1, section 8. In short Congress can spend money on ANY road used by the USPS to transport mail, and they can enter into compacts with states to provide maintenance of these roads. Are there any highways of freeways which are NOT used by the USPS?
7.30.2009 9:06pm
Allan Walstad (mail):


It's a way to try to evade the clear intent behind the Constitution.

There's your fundamental mistake. You are under the illusion that we are governed by the intent of the Constitution. This is incorrect, since we are, in fact, governed by the Constitution itself.

Yours is the fundamental mistake. You think you can play all the jolly word-games you want, to turn the Constitution inside out and do whatever it was the clear intent of the framers to keep you from doing. Constitutions work by being respected and obeyed, cherished and maintained. They don't hold up under shyster lawyering. No doubt, the lawyer who wants to break a contract knows every word and phrase, precisely for the purpose of rendering it null. Render the Constitution null and you end up with raw, arbitrary power. That's the direction we are headed, unfortunately.
7.30.2009 9:58pm
Sarcastro (www):
Text is too namby-pamby. Real law and order people are all about Intent!

(Just don't talk to Purposivist people. They are hard core).
7.30.2009 10:30pm
Allan Walstad (mail):


If any state fails to comply, then all commerce in and out of that state will be subject to a 50% tariff, or it will be held up for one week for inspection, or it will simply be blocked. How's that?

It's in violation of the clear text of the Constitution:

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.


Interesting. This refers to ports and vessels, not roads and overland interstate commerce. Nothing to prevent the feds from wreaking a bit of havoc with wheeled vehicular traffic in and out of, say, Kansas, if Kansas should prove recalcitrant. (Not among federal power-loving shyster lawyers, anyway.) I almost fell for this as an embarrassing counter to my previous point, because I was thinking in terms of intent, which (pending some historical investigation) might have been more generally to keep the feds from playing favorites among the states with respect to commerce.
7.30.2009 10:32pm
Oren:

They don't hold up under shyster lawyering.

The good ones do. That's why they are so damned good (not perfect, as we are finding out).

While we are on arbitrary powers, what makes you think that unmooring the Government from the textual underpinning will lead to less arbitrariness, not more? The text might not always give the right policy answer (e.g. the instant case, as I've repeated as nauseum, the policy is quite repugnant) but at least it doesn't change with the prevailing political wind.

What 5 Supreme Court Justices could make with the intent, however, is pretty much open-ended. More arbitrary than that, I'd venture, is hard to imagine.

Also, my error, I meant to cite:

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; but all Duties, Imposts and Excises shall be uniform throughout the United States;

You are absolutely right in your snide comment, however, that the port clause does not reach wheeled commerce.
7.30.2009 10:55pm
Roger_Z (mail):
Ignoring the separation of powers discussion for a minute:

The libertarian (I prefer "radical capitalist") answer to this conundrum is simple: roads should be private, and the owners should have the right to contract with the users regarding how they behave when using them. Under this scenario, I have no doubt that the vast majority of owners would ban (contractually) texting, since, as reasonable commenters have pointed out, there is a significant risk involved. The government would be called in to enforce the contracts as needed (and, BTW, I believe that there should be contract enforcement fees paid to the government by the owners). I suppose there would also be some market for "texting roads" (like "smoking airlines").


Given that roads are (almost completely) non-private, there is no principled solution, just as there is no principled solution to the appropriate curriculum for public schools. I suppose, in the above framework, the government becomes the "owner", and legislation and judicial interpretation become the mechanism by which the "contract" is "negotiated". The number of quotes in the previous sentence is a sure indicator of how ludicrous is this process.
7.30.2009 10:56pm
Oren:

You think you can play all the jolly word-games you want, to turn the Constitution inside out and do whatever it was the clear intent of the framers to keep you from doing.

Incidentally, (and for a second I'm not being snarky), people keep talking about "clear intent" when, in my experience, it's really not clear at all.

I don't read minds (let alone of the dead) and I have no idea what any other person is thinking or intending at any point in time. I can see only their physical actions, not the mental process precedent to those actions.
7.30.2009 10:58pm
Oren:

... the roads should be private, and the owners should have the right to contract with the users regarding how they behave when using them.

Roads are a natural monopoly by every possible definition. Even the most radical capitalist (I hope) would not venture that it's even remotely economical to build two competing sets of local roads in every city.

Not that I don't favor tollroads, turnpikes and bypasses, but that isn't going to fly on the local level.
7.30.2009 11:01pm
Oren:

I suppose, in the above framework, the government becomes the "owner", and legislation and judicial interpretation become the mechanism by which the "contract" is "negotiated". The number of quotes in the previous sentence is a sure indicator of how ludicrous is this process.

Why is it ludicrous that a government by the consent of the governed should make rules for the public square (road)?

Philosophers can rack their brains for eons and they still won't find any more legitimate source for government power than the continued consent of the governed. (paraphrasing John Adams, poorly at that).
7.30.2009 11:04pm
einhverfr (mail) (www):
Oren:

Backing this point:


I don't read minds (let alone of the dead) and I have no idea what any other person is thinking or intending at any point in time. I can see only their physical actions, not the mental process precedent to those actions.


What makes anyone think that all of the framers had the same intent? Do we pick and choose statements that we like? Or is the Constitution a "knife in the back of the Goddess of Liberty" as in the words of one framer?
7.31.2009 12:21am
Tritium (mail):
Oren:

The Constitution is a Written Constitution that limits the federal government. It doesn't mean whatever isn't restricted is authorized, on the contrary, unless it specifically authorizes such a power, it is not authorized, and whatever is specifically restricted is not authorized.

It's the lack of understanding of the principles contained within the Constitution that has allowed Congress to usurp powers never delegated. Most of the time because there was a benefit to the general public (or promise of benefit) so it faced little to no opposition. This sets a precedent that gets used to continue exercising the power, even when there is no benefit to the general public.

Coercion is being used in order to get state law-makers to pass laws the federal government prefers. But law-makers are elected by the people and are suppose to reflect the peoples will. How is this in any way Democratic? And if Congress uses coercion for minor legislation, whose to say the same tactic wasn't used to pass amendments to the Constitution? (Even though, like the treaty power, the amendment power is general in nature, and like all general powers delegated, are restricted to what is authorized by the constitution, and hadn't been intended to be used to repeal any part of the constitution. The sole power to repeal or alter a Constitution is vested in the people alone.)

I can't really convince you if you don't believe me, all I can say is look up the debates and Supreme Court rulings on the use of the Treaty Power being supreme. This doctrine had been discarded so often by the Supreme Court, from Chief Justice Marshall to Justice Brewer.

I would estimate that 90% or more of the laws passed by Congress are Unconstitutional. But if you still question my assessment, provide for me the enumerated power(s) under Section 8 of Article I that authorizes the exercise of power.
7.31.2009 2:18am
Laura Victoria (mail):
I don't have a per se problem with prophylactic driving safety laws, but I think rather than specific behavior-by-behavior patchwork legislation that invites value judgments of various activities and fails to take into account individual skills in being able to drive capably and carry on a given activity, the test should simply be one of negliegent driving. If someone weaves, runs a light, has to make an abrupt correction, fender bends, or has an "accident", any manner of distraction or driving in a manner making them unable to maintain control of the vehicle would be equally actionable--and the penalty would definitely be a function of the ultimate harm perpetuated.

Thus DUI, texting, eating, picking up dropped items from the floor board, falling asleep at the wheel, turning around to scold kids or dogs, distraction from language tapes, distraction from rap or classical music, distraction for undetermined reasons would all be treated the same. It is nothing but neo-puritan moralizing to treat someone with a BAC above the legal limit who is stopped at a red light 20 times more severely than the zero BAC person who became distracted through means other than drugs or alcohol and rear-ended him, causing Mr. greater than .08 injury.
7.31.2009 7:10am
Aultimer:

Laura Victoria

It is nothing but neo-puritan moralizing to treat someone with a BAC above the legal limit who is stopped at a red light 20 times more severely than the zero BAC person who became distracted through means other than drugs or alcohol and rear-ended him, causing Mr. greater than .08 injury.


Moralizing may be the sheepskin that the elected wolves wear to get such laws passed, but the fact that it's so easy for the police to validate is what causes the actual infringement on liberty.
7.31.2009 9:32am
Oren:

The Constitution is a Written Constitution that limits the federal government. It doesn't mean whatever isn't restricted is authorized, on the contrary, unless it specifically authorizes such a power, it is not authorized, and whatever is specifically restricted is not authorized.

And, as I've said a dozen times, building post roads is expressly authorized. The bill does nothing more than (a) build post roads and (b) not build post roads. Both (a) and (b) are powers expressly delegated by Art I.

You would have me believe that Congress can do (a) and Congress can also do (b) but Congress absolutely may not sometimes do (a) and sometimes do (b). That is not what the Constitution says about delegated powers when used in combination.


Coercion is being used in order to get state law-makers to pass laws the federal government prefers. But law-makers are elected by the people and are suppose to reflect the peoples will. How is this in any way Democratic?

It's not coercion because the Various States do not have a pre-existing right to have the Fed. build post roads in their State. It's inducement.

[ If I tell you "I'll give you $5M to dance naked in the street", that's inducement. If I tell you "I'm withholding your paycheck until you dance naked in the street", that's coercion. See the difference -- you have a pre-existing right to your paycheck, not to $5M from a stranger. ]

And it's clearly democratic, in the sense that the Various States (in Congress Assembled) have decided that they do not want to subsidize, with the GENERAL REVENUE, of the United States, post roads in States with a policy they believe in unsound. That is, South Dakota (or wherever) does not have some inalienable right to have the Fed build highways in their state out of the general revenue.

It takes a very twisted view of entitlement to to say they do.

I would estimate that 90% or more of the laws passed by Congress are Unconstitutional. But if you still question my assessment, provide for me the enumerated power(s) under Section 8 of Article I that authorizes the exercise of power.

90%, huh? Let's see here.

I see 90% non-binding resolutions (of no constitutional import). So, no, 90% of the bills passed by Congress are actually useless fluff.
7.31.2009 11:53am
Tritium (mail):
The power is to Establish Post Offices and Post Roads. It says nothing about maintaining such road, but to establish which roads will be used in the Postal Service.


The power vested in Congress "to establish post offices and post roads" has been practically construed, since the foundation of the government, to authorize not merely the designation of the routes over which the mail shall be carried, and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mails and all measures to secure safe and speedy transit and the prompt delivery of its contents. It "embraces the regulation of the entire postal system of the country," and empowers Congress to decide what shall or shall not be carried in the mail. But such regulation can not be enforced so as to interfere in any manner with the freedom of the press. The post officials can not open letters or sealed packages subject to letter postage, and intended to be kept free from inspection. Such can only be opened under a warrant, the same as if in the owner's household. They are exempt from search and seizure in the mail except upon legally issued search warrants. Ex parte Jackson, 96 U. S., 727.


As I said, most people have no idea what the Constitution actually means, then just assume, and assume incorrectly.
7.31.2009 12:22pm
Oren:
I don't understand your last post. The phrase "all measures to secure safe and speedy transit and the prompt delivery of its contents" doesn't leave a lot to the imagination.
7.31.2009 1:06pm
Tritium (mail):
It refers to the postal service, and the content of the block quote was a determination by the supreme court, John Marshal if memory serves. They were determining the extent of the clause to establish post offices and post roads.

Basically they can adopt measure taken by the Post Office to limit what can be send by mail, that allows for the speedy delivery. I'd assume that packages over a certain size weren't permitted. It says nothing about building bridges or even clearing a path for a road, but only to establish which roads mail is to be carried.
7.31.2009 2:06pm
Oren:
But if the lack of a bridge diminishes the speed of delivery, then building a bridge is certainly a "measure to secure speedy transit" of mail.
7.31.2009 2:56pm
Tritium (mail):
For purposes of trade, the state would have built a bridge on their own. But again, as I have said, most can't comprehend the Constitution, it's principles, and limitations. I don't expect people to catch on who do not try to find out on their own. We could go back and forth, but it won't matter until you try for yourself.

Read the Federalist Papers, Convention Papers, etc.
7.31.2009 3:13pm
Oren:

Read the Federalist Papers, Convention Papers, etc.a

Somehow I've read them and came to a different conclusion.
7.31.2009 4:44pm
pete (mail) (www):

Somehow I've read them and came to a different conclusion.


Oren, you haven't figured out yet that the only correct way to interpret the constitution happens to be the exact same way Tritium interprets it and that anyone who disagrees with him simply does not comprehend it? There is no way you can be an intelligent and informed person and come to a different conclusion. Get with the progam.
7.31.2009 5:13pm
Tritium (mail):
I didn't say that, however I do believe that a majority of people who do read them, get bored quickly, and often rush through them. Most haven't read the Constitution since grade school. It's much easier to be told what it means, rather than determining for yourself. There are several resources out there, all that is needed is a little time.

And when it comes to a contract, only those who authorized the contract have the authority to alter any part of it. So why should a Constitution be any different? Apparently, it's not according to the early congress and the supreme court in discussing the general powers outside the enumerated powers of congress are still limited my their own authority and cannot remove anything that is forbidden.

Believing it does defies the very nature of law.
7.31.2009 10:42pm
Oren:

It's much easier to be told what it means, rather than determining for yourself.

And after each of us determines for ourselves what the Constitution means, will there be unanimity on all weighty questions or are we going to be a country of 300 million governed by 300 million disparate interpretations of the same document?


And when it comes to a contract, only those who authorized the contract have the authority to alter any part of it.

That's either stating the obvious or begging the question.

No Congress has ever claimed to alter the Constitution or to exercise powers except those enumerated to it by Art I. You have no need to convince anyone that such a claim, if ever made, would be illegitimate.
7.31.2009 11:59pm

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