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They do this "census" thingy every 10 years, all in an effort to collect demographic info on us, and people fill them out every time. What's going on here?

The Feds are REQUIRED to do a census every 10 years by the Constitution. Of course, all the demographic BS they collect isn't required.

IANAL, and so won't presume to tell you not to answer that BS, but constitutionally, they are required (and allowed) to ask how many people live in your house.

Sorry, dude, but I suspect Congress actually would have a leg to stand on here.

While it's usually used in an overbroad sense, I'd say that the Interstate Commerce Clause would apply here, and legitimately, too!

That's the Declaration of Independence.

On the other hand, the Fourteenth Amendment specifically mentions the rights to "life, liberty, and property".

In the US, there is a distinct line between the government and corporations. Cynics may say that there is no real line, but it is there. The Constitution protects you and everyone else in America from governmental intrusion. Look at the Constitution (here) and you won't find a single word restricting businesses from doing any thing they want. The government, directly, cannot stop it, becuase it is not a power granted to the government. Now, there can be regulation, and the states have some powers, too, but in the end, the Framers of the Constitution were not worried about private violations of rights. A business, after all, cannot put you in jail. What we have to do is identify when a business violates rights of free speech or privacy, or whatever, and boycott them. That is the remedy for this private sector violation. Business runs on its ability to DO business. If no one goes to a site because it collects too much personal information, or no one uses a software product because it has been revealed to be too nosey, then the business will alter its model. More governmental regulation is probably not the answer, else the government starts sticking its nose in places it doesn't belong. The big problem I see is that too many people are either fooled by business into revealing too many personal details, or are too willing to trade personal details for a free screen saver or t-shirt. That is a bit harder to deal with.

The last time I checked, we still live in a democracy.

If anybody tries to give the Presidency to someone that didn't get a majority vote, I'm going to throw a fit.

Take a look at our constitution, which can be found at a variety of places, such as USConstitution.net. Pay particular attention to Article 2, Section 1 and the 12 Amendment. Then, if you don't like how things work...get cracking on a constitutional amendment!

What do you think the Constitutional problem with the DMCA is? What clause of the Consitution does it violate? What is the relevant case law?

I'll admit that this is just my own vague feeling on the subject. IANAL. Still, I have some means of backing up my statement: that the DMCA, as I currently understand it, violates Article I, Section 8, of the U.S. Constitution:

Congress shall have the power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

What the DMCA provides, in effect (where "effect" == Judge Kaplan's ruling), is perfect, eternal control of the media so protected. This seems to me to be in direct violation of the above clause.

Again, I'm not a lawyer, so this could just be wishful thinking on my part.

I may be mistaken, but I don't believe the public property -- in this case, the spectrum -- was given away. It was sold. The media companies paid for it, and the people (through their government) received the money. Now, you might argue they did not pay enough, but they did pay.

I'm definitely not saying that it was given to the companies free of charge, though I can understand why you might think I meant that. I'm not really even saying that they weren't charged enough. What I meant to express, rather, was that the FCC is granting rights that it shouldn't be granting, regardless of how much the licensees paid for their respective spectrum allocations.

When you're granted a license to broadcast, you're already given a monopoly on a given frequency band, for a given wattage (or geographical area, I'm not sure). But the spectrum still belongs to the people, not to any particular company. It seems, therefore, that we, the people, should be entitled to fair use of the content broadcast. Right now, we are: you can tape the last episode of Survivor, if you want, or record the year-end countdown of top hits on your favorite radio station. You can even save it for posterity, or give the tape (or whatever) to your friends. You just can't sell it.

The technology that this regulation would require would effectively push the people off of the last toe-hold they had on the radio spectrum. The people as individuals (not as represented by their government) would lose their last semblance of ownership of the frequencies licensed to the television networks.

What do you think the Constitutional problem with the DMCA is? What clause of the Consitution does it violate? What is the relevant case law?

I'll admit that this is just my own vague feeling on the subject. IANAL. Still, I have some means of backing up my statement: that the DMCA, as I currently understand it, violates Article I, Section 8, of the U.S. Constitution:

Congress shall have the power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

What the DMCA provides, in effect (where "effect" == Judge Kaplan's ruling), is perfect, eternal control of the media so protected. This seems to me to be in direct violation of the above clause.

Again, I'm not a lawyer, so this could just be wishful thinking on my part.

I may be mistaken, but I don't believe the public property -- in this case, the spectrum -- was given away. It was sold. The media companies paid for it, and the people (through their government) received the money. Now, you might argue they did not pay enough, but they did pay.

I'm definitely not saying that it was given to the companies free of charge, though I can understand why you might think I meant that. I'm not really even saying that they weren't charged enough. What I meant to express, rather, was that the FCC is granting rights that it shouldn't be granting, regardless of how much the licensees paid for their respective spectrum allocations.

When you're granted a license to broadcast, you're already given a monopoly on a given frequency band, for a given wattage (or geographical area, I'm not sure). But the spectrum still belongs to the people, not to any particular company. It seems, therefore, that we, the people, should be entitled to fair use of the content broadcast. Right now, we are: you can tape the last episode of Survivor, if you want, or record the year-end countdown of top hits on your favorite radio station. You can even save it for posterity, or give the tape (or whatever) to your friends. You just can't sell it.

The technology that this regulation would require would effectively push the people off of the last toe-hold they had on the radio spectrum. The people as individuals (not as represented by their government) would lose their last semblance of ownership of the frequencies licensed to the television networks.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


I'd say that clause of the Fourteenth Amendment trumps the DMCA, at least for the proposed test case.

Copyright is granted in the Constitution, and some case has already upheld that Congress can increase the time of copyright as far into the future as they like, and that any restrictions on "fair use" are legal.

Copyright is granted in the Constitution, and some case has already upheld that Congress can increase the time of copyright as far into the future as they like, and that any restrictions on "fair use" are legal.

Uh, the Consitution does not guarantee fair use. In fact, the Consitution would allow Congress to give the MPAA a monopoly on content for a billion years, if they wanted to. "Fair use" was created by Congress, and is not a guarenteed right. Copyright, on the other hand, is an enumerated power, and Congress can do whatever they like with that. Fair use is something nice - they could remove that if they wanted to.

Now that's scary.

(Congress is given the right to create copyright in the oft-quoted Article I, Section 8 of the United States Consitution. The relevant enumerated power reads "[Congress is granted the power t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]" and can be read here.)

Yup. IANAL, but someone ought to start a class action suit to recover all of those unconstitutional "use" taxes that have already been collected.

What you're looking for in Article I, Section 10:


No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

http://www.usconstitution.net/cons t.html#A1Sec10

OK folks, Maybe my threshold is set too high here or maybe I have been too busy to pay attention, but did Congress and 3/4 of the states of the union ratify a constitutional amendment which obviates Article 1, Section 9?

That article clearly states that, and I quote verbatim: No Tax or duty shall be laid on Articles exported from any State.

What part of this is ambiguous, and what part does not apply in this situation?

Not only that, but just below, in article 1 section 10 (Powers prohibited of States) it clearly states that No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports..

BTW, A1S9 is subtitled 'Limits on Congress', which means that Congress may NOT deviate from this legally unless the constitution itself is amended!!!! Therefore Congress can't grant those rights (A1S10) because they are not authorized to (A1S9), again, without an amendment to the Constitution itself.

What is so hard to understand here? And why get worked up about it?? This pops up occasionally, and it really shouldn't as it's much ado about nothing until the amendment is proposed....

Your Working Boy,

In an otherwise decent essay, Jon Katz manages to get this point nearly backwards:

American-style democracy dates to an era when most voters never got to lay eyes on their elected officials, let alone participate in civic information-gathering and decision-making. Washington was constructed to do the talking and voting on behalf of constituents unable to join. Technology, especially computer technology, has completely transformed that reality ...

The small kernel of truth in this statement is that the U. S. Constitution deliberately sets up a republic rather than a direct democracy. This is for reasons both practical (the country has always been too big to run via direct vote) and ideological (the founders were concerned with the problem of mob rule, or "tyranny of the majority").

But otherwise, this is sheer hogwash.

At the time of the adoption of the Constitution, town-hall democracy was well-established in New England, giving citizens more experience in "civic information-gathering and decision-making" than most citizens get today.

Given the smallness of most communities in those days, the idea that voters "never got to lay eyes on their elected officials" is nonsense. Perhaps for the President, or their state's Senators. But, the Constitution originally established that there would be one Representative per 30,000 citizens. Now tell me, do you really think that a polititican, who needs to run for office every two years, can stay out of sight for the majority of voters in that small of a district? This doesn't even count the variety of State and local offices, which in the days before telecommunications, interstate highway systems, and immense growth in Federal bureaucracy and power, had much more effect than they do today.

In the famous Lincoln-Douglass debates, it has been estimated that more than half of the voters of Illinois attended at least one debate. These debates were over six hours long. When was the last time that more than half the voters of a state heard their senatorial candidates in person engaging in substantive debate for more than a few minutes of media sound-bites?

Technology, for the most part, has not helped. Oh, sure, it's tough to avoid seeing candidates mugs on TV during the election season. Great, so know I know what they look like at their most photogenic and hair-styled. What is their political philosophy? How is Tweedledum different from Tweedledee this year? TV campaigning takes us further away from those answers, not closer.

And the internet? I have to admit that the ability to check pending bills, voting records, etc. without having to be physically present at the site of the legislature can be nice. But that is subject to how timely that legislature's web site is. And, if the "real" politicing is done the old-fashioned way, via face time, dollars, and grass-roots vote-gathering, then the "wired"-ness of legislative or executive bodies is not particularly transforming. At best, it's a nice bonus. At worst, it provides the illusion of public access and accountability without the reality.

It is vain to rule if your subjects can and do disobey you. It is vain to vote if your delegates can and do disobey you.
-- G. K. Chesterton, "The Great Shipwreck as Analogy"

I was thinking while reading Jon's article about how our population as a nation has grown since 1800, but has the population of our congressional representatives grown? I know the senate has always been 2 per state, but what about house representatives? What I'm getting at, is that the congress has become much less representative simply because of the numbers involved, and the power of each individual congress person has grown way beyond what was originally set up.

Good point. The original way was that every state got one Representative per 30,000 (including the infamous "three fifths" rule, whereby slaves counted as 0.6 person for the purposes of calculating seats in Congress). Minimum 1 per state, of course.

This was superceded by Amendment XIV, Article 2, which states that "Representatives shall be apportioned among the several States according to their respective numbers". That number is currently set at 435, although since it's not hard-coded into the Constitution, in theory Congress could pass a law raising the number of Representatives to, say, 650. As this would dilute the power of each current Representative, I'm not holding my breath.

Note that Senators were originally seen as representatives of the individual States, not as "popular" representatives. A common practice was for the Governor to appoint each Senator. Popular election of Senators was not mandated until Amendment XVII was ratified in 1913.

Both the characteristic modern parties believed in a government by the few; the only difference is whether it is the Conservative few or Progressive few. It might be put, somewhat coarsely perhaps, by saying that one believes in any minority that is rich and the other in any minority that is mad.
-- G. K. Chesterton, What's Wrong With The World

I was thinking while reading Jon's article about how our population as a nation has grown since 1800, but has the population of our congressional representatives grown? I know the senate has always been 2 per state, but what about house representatives? What I'm getting at, is that the congress has become much less representative simply because of the numbers involved, and the power of each individual congress person has grown way beyond what was originally set up.

Good point. The original way was that every state got one Representative per 30,000 (including the infamous "three fifths" rule, whereby slaves counted as 0.6 person for the purposes of calculating seats in Congress). Minimum 1 per state, of course.

This was superceded by Amendment XIV, Article 2, which states that "Representatives shall be apportioned among the several States according to their respective numbers". That number is currently set at 435, although since it's not hard-coded into the Constitution, in theory Congress could pass a law raising the number of Representatives to, say, 650. As this would dilute the power of each current Representative, I'm not holding my breath.

Note that Senators were originally seen as representatives of the individual States, not as "popular" representatives. A common practice was for the Governor to appoint each Senator. Popular election of Senators was not mandated until Amendment XVII was ratified in 1913.

Both the characteristic modern parties believed in a government by the few; the only difference is whether it is the Conservative few or Progressive few. It might be put, somewhat coarsely perhaps, by saying that one believes in any minority that is rich and the other in any minority that is mad.
-- G. K. Chesterton, What's Wrong With The World

I was thinking while reading Jon's article about how our population as a nation has grown since 1800, but has the population of our congressional representatives grown? I know the senate has always been 2 per state, but what about house representatives? What I'm getting at, is that the congress has become much less representative simply because of the numbers involved, and the power of each individual congress person has grown way beyond what was originally set up.

Good point. The original way was that every state got one Representative per 30,000 (including the infamous "three fifths" rule, whereby slaves counted as 0.6 person for the purposes of calculating seats in Congress). Minimum 1 per state, of course.

This was superceded by Amendment XIV, Article 2, which states that "Representatives shall be apportioned among the several States according to their respective numbers". That number is currently set at 435, although since it's not hard-coded into the Constitution, in theory Congress could pass a law raising the number of Representatives to, say, 650. As this would dilute the power of each current Representative, I'm not holding my breath.

Note that Senators were originally seen as representatives of the individual States, not as "popular" representatives. A common practice was for the Governor to appoint each Senator. Popular election of Senators was not mandated until Amendment XVII was ratified in 1913.

Both the characteristic modern parties believed in a government by the few; the only difference is whether it is the Conservative few or Progressive few. It might be put, somewhat coarsely perhaps, by saying that one believes in any minority that is rich and the other in any minority that is mad.
-- G. K. Chesterton, What's Wrong With The World

In theory, we ought to have privacy rights in the U.S.A. The federal constitution is one of enumerated powers; and the right to pry into and compile the details of everyone's life isn't one of those powers. And the U. S. Supreme Court has held that privacy is a right of citizens (see here for a quick summary).

In practice, we have been suckers for any come-on which promises security, to be "tough on crime" or to protect us from those lurking terrorists. ("Why do you care if you have nothing to hide" is a common attitude.) So there's very little (practically, none) legislation to actually apply that right of privacy to government or private data collecting. The only place that the right to privacy has been actually applied vigorously is as it relates to sex, or to the ability to kill unborn children (the in/famous Roe vs. Wade case where the Court declared the ability to abort a child a fundamental American "privacy" right).

I'm not a legal scholar by any means, so I'm not exactly sure what the legal difference between a right and a privelege is. But given that federal and state legislatures can limit ones ability to vote, _I_ would still consider it a privelege. Check out Things that are not in the US Constitution:

The Right to Vote

The Constitution contains many phrases, clauses, and amendments detailing ways people cannot be denied the right to vote. You cannot deny the right to vote because of race or sex. Citizens of Washington DC can vote for President; 18-year-olds can vote; you can vote even if you fail to pay a poll tax. The Constitution also requires that anyone who can vote for the "most numerous branch" of their state legislature can vote for House members and Senate members. Note that in all of this, though, the Constitution never explicitly ensures the right to vote, as it does the right to speech, for example. This is precisely why so many amendments have been needed over time - the qualifications for voters are left to the states. And as long as the qualifications do not conflict with anything in the Constitution, that right can be withheld. For example, in Texas, persons declared mentally incompetent and felons currently in prison or on probation are denied the right to vote.

I thought no law was allowed to be retroactive (the Constitution says that here in Norway, at least), but with the American legal system, you never know :-)

The American Constitution says the same thing:

No Bill of Attainder or ex post facto Law shall be passed.

Given that, I see a couple of possibilities --

• U.S. anti-trust laws don't really contain ex post facto regulations, and sql*kitten is spewing FUD
• U.S. anti-trust laws do contain ex post facto regulations, and in the 70+ years of anti-trust law, no lawyer has been clever enough to think of getting the laws thrown out on Constitutional grounds

I know which explaination makes more sense to me ...

(Full text of the U.S. Constitution plus many other resources are available at http://www.usconstitution.net/.)