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Source link: http://blog.mises.org/7096/how-can-bigamy-be-illegal/

How Can Bigamy Be Illegal?

September 6, 2007 by

I’ve never quite understood how bigamy can be illegal. Bigamy means marrying two women. But marriage is a legal relationship recognized by the state. If the state recognizes it, why should it penalize it? If it penalizes the second marriage, then isn’t it partly responsible, since it granted the second marital status? Why doesn’t the state simply state that if you are married, any attempt to re-marry is null and void? This would make it clear that the state is just penalizing the attempt to re-marry–which I suppose means it’s criminalizing the filing of certain documents or applications with the state. But why is that a crime? I suppose it would make a certain sort of sense to characterize it as a crime of perjury, assuming the application from the state made the marriage applicant swear that he was not currently married–but bigamy is the crime, not perjury. It just makes no sense.Likewise, how can the sale of drugs, or of sex, be illegal? A sale is a legally recognized transaction–party A transfers title to his money in exchange for a service from B (sex), or in exchange for B transferring title to his drugs to A. But for it to be a sale, the state has to recognize it. Why would the state recognize something it outlaws? If it does recognize it as a legal transaction, how can it then criminalize it–wouldn’t it then be a partner in the crime?

In fact I would think the transfer or “sale” is not really “legal” under the state’s laws–I doubt a court would enforce a drug dealer’s collections suit against a buyer in default. So really, what the state is trying to penalize is the physical transfer of money if it is somehow associated with the provision of sexual services or the physical transfer of possession of narcotics. But this is not how the crime is characterized; it’s characterized as an actual sale (as far as I know).

Another similar anomaly in the law is the idea of “legal tender”. I must confess I have no idea what legal tender means. It seems like a circular concept to me. US currency has “this note is legal tender for all debts.” Now I suppose this makes a certain sort of sense if the state outlaws gold or contracts denominated in gold, or requires all contracts to be stated in dollars. So if you have an agreement to pay someone “five dollars,” then if they pay you a five dollar bill, that satisfied the agreement. As Huelsmann notes here,

Paper money is protected through “legal tender” laws, which means that you and I can be forced to accept it as payment, even if we have contractually stipulated payment in other commodities.

I assume this is why 31 U.S.C. §5118(d)(2), “An obligation [payable in United States money] containing a gold clause is discharged on payment (dollar for dollar) in United States coin or currency that is legal tender at the time of payment.”

However, the next sentence reads: “This paragraph does not apply to an obligation issued after October 27, 1977.” So, apparently, this means that, since 1977, gold clauses are enforceable. Rothbard noted: “In 1977, gold clause contracts were legalized.” See also Ron Paul, Freedom Under Siege: The U.S. Constitution After 200 Years, p. 145: “After forty years, the right of American citizens to own gold was once again restored in January 1975 (thanks to the work of Jim Blanchard and Congressman Phil Crane). In 1977 Senator Jesse Helms and his legislative assistant Howard
Segemark were instrumental in legalizing gold clause contracts, a right taken from us by FDR and the liberal courts in the 1930′s. Although these contracts are not yet commonly used, this legal step is of great importance to the hard money movement.”