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Interpreting the Constitution In the Digital Era
oik writes "NPR's Fresh Air this week had an interesting interview with Jeffrey Rosen, one of the authors of Constitution 3.0 , which addresses a number of issues to do with interpreting the US Constitution in the face of new technologies (both present and future). Many of the topics which he touches on come up on Slashdot a lot (including the GPS tracking cases). It's well worth listening to the program (link in the main page), of which the linked article is just a summary."
No tyrant in history was ever able to grab such power and the effect over the 20th century has been absolutely devastating to the United States. Even today, with the increasing disintermediation (and consequent slow recovery of freedom) of information, you still have public opinion being molded by the likes of Jeffrey Rosen and NPR. Indeed, no candidate seeking public office at the Federal level has had a hope of winning that office without the support of the broadcast networks, whose unconstitutionality is so ignored by Jeffrey Rosen and NPR (for obvious reasons).
Seastead this.
When you can simply ignore it.
It's not as if there are any repercussions.
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While the political themes of Kim Stanley Robinson's trilogy beginning with Red Mars have divided readers, I found the constitutional debates within to be fascinating. The settlers of Mars come together in a constitutional convention that takes new, present-day technology and ecological themes into account, and examine a far larger set of models of political organization than the American Founding Fathers knew about. Junking it all and starting from scratch seems like a wonderful opportunity. Ever since I read those books in the mid-1990s, I've felt sad that not only is American democracy co-opted by special interests and the inevitability of a stagnant two-party system, but even at best it would be limited to a late 18th-century worldview.
If you merely ignore the constitution, your enemies may use that against you; not because they have love of the constitution, but merely because they can. Interpreting it out of existence is both more permanent and less likely to rebound on you. Example: Having the cops beat the shit out of Occupy Wall Street protesters on camera. Sure, you can get away with it, but it could cause political damage. Better: Re-interpret the constitution so "freedom of assembly" means "assembly only in designated protest areas, for short periods of time". Then have the cops beat the shit out of the protesters not for protesting, but for protesting in the wrong place. You're just following the law, then.
One thing I always found interesting about constitutional interpretation is that the same people who argue the 2nd amendment should only apply to muskets (on the basis that the writers of the constitution supposedly could not have imagined anyone ever designing what they all wanted... a gun that shoots faster and further), will turn right around and assert the first amendment has a wide reach with respect to electronic mass media. Electronic mass media... like that was easier for a colonist to see coming than a rifle upgrade.
All texts require interpretation. No human utterance is unambiguous. This has been understood for over a century now, since Saussure proposed l'arbitraire du signe. Science, bitches.
This is the real problem - 'interpreting' the Constitution.
There should be no such thing, no 'interpreting', because this is used to justify anything, any power grab, any expansion of gov't power, any kind of thing that gov't wants.
You know it's true, they interpret Bibles the way they want to fit in any new technological advancement and same becomes a problem with the Constitution. It's not supposed to be interpreted, it's supposed to be followed. It's the law.
It's not the Constitution that needs interpretation (and I am not saying the document is perfect, far from it, it is not making it explicit that it shouldn't be interpreted for example).
The law that applies to the private citizens is not interpreted - you kill somebody - there is no 'interpretation' of the law. The question is only of your guilt.
It should be same with the Constitution - gov't takes over some power, the question is only the amount of guilt that should be allocated, not whether it was permitted by the Constitution that this power was supposed to be taken over.
There is a larger question here as well - should gov't even be allowed to pass NEW laws at all? I don't think so.
If the physics laws were changing all the time (F=MA today, some time from today it's F=2MA, some time later it's F=A; E=MC2, E=MC, E=C, E=4C; Today Hydrogen has this mass, tomorrow it's half that.) There would be no stars, no planets, no life in that unstable system.
Same with society and economy and gov't. Gov't sets the basic laws and then society and economy work around those laws. Change the laws and economy/society now must change how it works to accommodate the change of laws. Do too much of this and enough times and you destroy the economy and society.
That's what you have now - destruction of economy and society by gov't.
This was caused by various loose 'interpretations' of the Constitution (at first), and now it's just blatant disregard to the Constitution, which is LAW that gov't is supposed to abide by.
This is your fundamental problem.
You can't handle the truth.
Also what is a real pain (and this has been happening for a long time). It is almost the same problem as 'patents and copyright'. That for some reason now that there are computers that the whole thing doesnt make sense anymore.
The rules are almost dead simple to follow yet people keep trying to reinterpert them to mean something else.
The first 7 articles say how our gov works. Day to day and in exception cases.
The first 10 amendments were to limit the first 7 articles and what they do. They were written in plain language so people could follow it. Trust me they were very deliberate about that. The guys who wrote it could pontificate with the best of em...
The ammendments can be summed up pretty much as follows
1) we can say whatever about the gov, and the gov stays out of religious affairs (not the gov doesnt have it in it, just stays out of it).
2) There needs to be an army. That army shall be of your common folk. They will have guns. They get to keep them.
3) The gov can not just put soldiers where ever. In other words buy your own damn buildings to put your soldiers in. Also feed them yourself. Unless someone lets you do it.
4) If the gov wants to seize something, or riffle thru our shit it needs to get the 3rd branch involved and make a case.
5) This one is 'cant be tried twice'. AND if the gov takes something under (4) unjustly it needs to pony up some cash.
6) You dont deserve to rot in jail for 20 years for jay walking. Also the gov will help you out and make sure your trial is fair. Going as far as to procure counsel for you.
7) Civil cases shall be a jury trial.
8) Dont impose more money there is in the world for bail. Also dont make punishments what most people consider cruel just because you want to get revenge somehow.
9) If it isnt in here people get those rights. Or the 'if it isnt illegal then you can do it' clause. Instead of the other way around.. For example in most states flame throwers are legal because there is no real laws regulating them...
10) If itsnt declared here the states get to decide. This was a big issue during the civil war in addition to slavery (people in the north and south still do not understand each other and why they fought).
The remaining 17 were created due to particular situations arising. Where if congress wanted to make something illegal they needed to make an amendment for it. Or states abusing people in some way or another. Or tweaking the way the gov works in some way (such as when pay raises can be passed).
In many ways Congress has abused the 'interstate commerce' clause to abuse all 10 of these at some point or another. They will continue to do so. This is usually because of greed, money. Sometimes that 'they know better', this is sometimes true. However, sometimes it is just a matter of opinion sure it may be 'bad' for people. But do you really want people legislating morality? What if that morality doesnt agree with yours? This becomes the 'there should be a law for that' rule that is so ingrained in people. In many ways they are going too far with their rules in order to swat a minor annoyance (ie amendments 18 and 21).
And back to my original point. NOTHING in there precludes the rules being equally applied to computers. That we somehow need 'new' rules is just treating computers as something more than they are. They are not magical devices. They are tools that let us effectively communicate with each other. Though what I see on youtube and slashdot sometimes makes me wonder about the effective bit :)
I'll make it easy. Stick with the traditional interpretation and follow it like plain language. If you treat the Constitution as a list of government permissions and not a set of restrictions, and ditch the attempts to interpret the enumerated rights as somehow limiting anything not mentioned...
The Constitution is VERY easy to interpret when you are trying to argue on the behalf of freedom. The only time you need a crack lawyer to argue an interpretation is when you are trying to present an interpretation that seeks to limit freedom.
Some argue that such a simple approach is flawed as it would prevent the government from performing functions that we want them to do such as the EPA, Dept of Ed., etc. That is not true because for anything so important and universal that it requires the federal government, then we need to go through the effort to amend the constitution to grant the government the authority to do that. If it really is that important then passing the amendment will happen. If it doesnt pass that means you either were proposing something that more people than you didn't want, or you need to spend more time convincing people that they want the government to do what you say they should do.
Imagine you hire someone to repair a wall in your house. While he is working he sees you have a broken window and decides that you would be better off and fixes the window of his own volition. What he didn't know is that you were going to build an addition and the window was being removed anyway.
The repairman exceeded his authority and even though he was doing something 'good', but the right way to do it would be to ask you to amend his contract to grant him the authority to fix the window in addition to the wall.
Sure, its harder, but hat process ensures that you have to 'opt in' to increased government rather than the easier method that requires us to actively 'opt out' by continually passing new 'protections' each time the government figures a way around the old protections.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
You can bet the Second Amendment would be gone. That's the lynchpin keeping all the other ones in place. On another note, the constitution doesn't need to be recreated. The founders created a clear method for amending it, which has happened over two dozen times now.
Taking guns away from the 99% gives the 1% 100% of the power.
What part of "papers and effects" don't they understand?
Your computer (and phone) is as much your "papers" as the media is a "press".
What right did they get to GPS-track you? Isn't your car an "effect"? Even if not, it still is your property. So where did the government get the right to use your property without due process of law (5th amendment)?
Where'd the government get the right to confiscate servers? Domain names? Where's the due process of law?
The constitutional view is that the government only has such powers as have specifically been given to it. The state's view is that they have plenary (unlimited) power until stopped by a greater power.
A Constitution 3.0 would not be needed if there were a proper perspective on the existing constitution.
Read the link for the Federalist Papers, the Antifederalist Papers, and more.
I'm not a lawyer, but I play one on the Internet. Blog
It makes you wonder if NPR could survive without tax dollars.
One of the superb ironies during the "cut NPR funding" kerfuffle of a couple of years ago was hearing the head of Minnesota Public Radio, Bill Kling, on a talk radio station being asked about this.
The caller said "Every time there is a pledge week you tell us government funding is only a fraction of your revenue and you desperately need our donations. Why is it when you are about to lose government support you claim it will drive you into the ground? Which claim is true and which one is at best an exaggeration and at worst an outright fabrication?"
It was hilarious. The guy really had no substantive answer. His nuanced answer was probably right, which was "well, if we lost all government money at once, we'd have to make some not insubstantial cutbacks."
Who knows what the REALLY means -- cashiering half the workforce, ending programming, cutting broadcast hours and shuttering facilities? Or does it mean something more subtle, like no more goodies at staff meetings?
Supporters of the various hate speech laws and are quick to point out the freedom of speech has its limits.
That never made sense to me. The constitution states no such limitation. If you don't like that, then wouldn't the proper thing to do be to amend the constitution? Same for anything else. Rather than following the proper procedures, they seem to just create invisible exceptions and/or interpret it as they like.
Filthy, filthy copyrapists!
The libertarian always looks at a law from an isolated egotistical position instead of a higher broader definition.
If you take something like hate speech if you only look at it from an extremely egotistical position "I can't say ___ therefore *my* right to free speech is being infringed."
That's a legitimate egotistical position. However that's not how a government can look at any given action. It has to take into account the *net* effect of speech on its citizens.
So while it's true that stopping someone from saying "We need to round up the Mexicans and gas them." would infringe on their speech... hate speech by its legal definition is speech which infringes on others' rights.
If someone's advocating for violence against a group of law abiding citizens and threatening them if they freely assemble then their speech infringes on a large group of people's rights. The net effect of the hate speech is that a large number of people lose their own freedoms and rights. So their speech must be reduced in order to protect the speech of others.
Hate speech suppresses the rights of minorities since it impedes their ability to live free of the threat of constant violence. When they're living under the threat of violence numerous freedoms will be taken from them.
Actually it's more if the constitution doesn't say you can make a law you CANT.
"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."
Tenth amendment to the constitutions of the United States Of America. (see also the tenth amendment)
The good news is we shouldn't need a new law to stop warrentless gps tracking.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"
Fourth Amendment.
The constitution is to give the federal government the minimum necessary powers to do it's job and NO MORE, the rest is for the states and individuals.
Mycroft
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