Does the existence of 'non-public fora' refute the social contract theory?

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Cortes Posted: Mon, May 28 2012 2:38 AM

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http://volokh.com/2011/05/17/no-constitutional-right-to-dance-in-the-jefferson-memorial-2/

http://adwww2.americanbar.org/SCFJI/Lists/New%20Case%20Summaries/DispForm.aspx?ID=464

I'm sure most of you remember this disturbing event and its predecessor in 2008. I am also dismayed by the reaction by Eugene as I normally find his site a great legal resource, but then again I am aware the Volokh Conspiracy does not always take the editorial position closest to classical liberalism.

I am also aware I am going to get responses to this in the vein of "who cares the Constitution is illegitimate blah blah State ancap etc" but one's opinion of the Constitution in this case is irrelevant.

What concerns me is the implications of the idea of nonpublic fora, ie public property where 1st Amendment rights are curtailed and regulated at the government's arbitration.

The implications here are: The State takes your money, builds these institutions, you 'sign a contract' to be able to express rights on this public property... EXCEPT for uh, this rotunda here, or these couple square feet, or say 100 km from the capital. Yeah, you gotta pay for it's upkeep, but don't dare imagine you can express any rights we agreed on earlier here, ok? This is an exception. Ok, back to paying taxes. Wasn't Jefferson awesome?

Doesn't the very existence of such 'nonpublic fora' (what a depressing word) automatically refute the social contract theory of the State? Does accepting this regulation as valid concede the fact that it is the Government that believes itself to be the ruler, and we should fear it lest the consequences, not the other way around? In no way in this 'social contract' could the citizen foresee that the State can at any time contradict itself on what rights can be expressed on its own property it expropriates from us. It seems an explicit message here is that "no, you didn't agree to this but that's too fucking bad."

I'm not sure I'm reasoning this properly or that my concerns even prove it, yet there is something in the acceptance of this regulation that really seems to break down the entire chain of logic, even though I may not have properly put it into words here.

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Cortes replied on Fri, Jun 1 2012 2:14 PM

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Using this jurisprudence, does it then follow that the State could declare any public space 'non-public fora'?

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Cortes replied on Sun, Aug 26 2012 9:41 PM

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EDIT: doublepost

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Cortes replied on Sun, Aug 26 2012 9:47 PM

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I know it's been a while, but care to expand on why you think so?

My refutation rests on the notion that the social contract is only valid if I consent to all the terms. But what are the original terms? The government continually moves the goalposts on these 'contractual terms', and even completely contradicts itself and breaks its own obligations. Yet since I live in its vicinity, I must acquiese to being raped. 

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Bert replied on Sun, Aug 26 2012 9:56 PM

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Think of it like this, there's the individual, the constitution, and the state.  Now, between the state and the individual is the constitution, it's the "framework" or pretty much some confirmed policies and rules we "decided" to obey, so there's individuals : constitution : state, but in reality it's more like individuals < constitution = state.  The state is the entity who confirms and writes up the rules for us to all abide by, but again they are the rules, the constitution is the exception that they also write.  It's a facade, and arbitrary.  Even if there's an agreed limitation between the individual and the state through the constitution, the state and constitution are joined at the hip, and we are outside of that.

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Wheylous replied on Mon, Aug 27 2012 1:08 PM

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The government has the power to do anything. See eminent fomain /thread.

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David B replied on Mon, Aug 27 2012 2:44 PM

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Cortes : "The government continually moves the goalposts on these 'contractual terms', and even completely contradicts itself and breaks its own obligations."

I think you hit the nail on the head here.   I've argued elsewhere that "unbiased" formation and application of the law in terms of the people themselves, not in terms of behaviors is the goal.  In other words law is about increasing costs of behavior the society deems destructive, and decreasing the costs of behaviors that the society deems constructive.  Biased application of law, would be to discourage a behavior in one group while simultaneously encouraging it in another social group.

I'm not opposed to movement of the goalposts when it comes to behaviors, because in principle the movement I would like to see (more freedom, wider adoption of private property, etc.) would also require the ability to move the goalposts.  The difference is in the "completely contradicting itself" in terms of the applicability of a law to one group of people, while not applying to another group.  Think women/men, race1/race2, under 30/over 30, etc.