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."

Comments

The real issue

[Baldrson]

If you are really interested in issues of Constitutionality and electronic technology, the issue most relevant to the original intent of the US Constitution was the establishment of de facto censorship of free speech created by the broadcast networks under the licensing authority of the Federal government. The broadcast licenses thereby issued allows public discourse to be limited to the range of issues and opinion determined by central authorities far from the citizens they were to "inform".

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).

Re:The real issue

[Xanny]

The power of media is just part of a recurring theme of politicians just ignoring the constitution and putting Supreme Court judges in place to keep whatever backwards legislation they pass as law.

If all three branches of government are controlled by private media dollars, there are no checks and balances left, and there is no way to enforce the constitution if all the branches are taken out of the picture like they are right now.

I mean that is the main reason for OWS, getting corporate influence out of government. The real solution is to really understand what the constitution was for - it was just a document to unify the states under a common base law. That was the reason for the 10th amendment. The states should be handling almost everything the fed is right now, and through financial mobility anyone disenfranchised with a given state could move to one that better suits their political ideology. The problem is that states have become irrelevant as amendments like direct voting of senators came about removing the states from the federal level.

It really is just a side effect of the top down politics when they should be bottom up - new ideas of political discourse should come from local attempts at new ideas and good ideas should build up across districts into state laws, and eventually if everyone starts doing the same thing it might become national law. The way it is now is just backwards

Re:The real issue

[anagama]

Here's a real gem from Obama's position on the law:

Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult.

In other words, Obama is saying "Bush, Cheney, and I have managed to get get around constitution for the last decade. If you pass this bill, you jeopardize all that hard work."

KSR's Mars trilogy make me think about the now

[CRCulver]

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.

Re:KSR's Mars trilogy make me think about the now

[hort_wort]

... 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.

It'll make you even more sad to find out that Thomas Jefferson believed the Constitution should be scrapped and rewritten every 19 years, a new set of rules that each generation decides for itself to follow. All the modern politicians that talk about the founding fathers tend to skip over that point.

You're welcome. :-\

constitutional interpretation

[doug141]

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.

Easiest and safest interpretation

[IndustrialComplex]

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.

I'm afraid of what we'd lose.

[XxtraLarGe]

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.

Papers and effects

[Compaqt]

What part of "papers and effects" don't they understand?

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.

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.

Re:Usurping power by subverting the Constitution

[LocalH]

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.

The problem isn't new laws, it's that they exceed their authorization to pass laws covering certain things. The Interstate Commerce Clause basically turned into the legal equivalent of a rootkit when it can cover activities that are fully intrastate, merely because they can "affect" interstate actions. That little bit of legal wrangling pretty much guts the 9th and 10th, from a practical standpoint. If a person is too "self-sufficient", that means they are affecting the interstate market for various things and must be stopped (see Wickard v Filburn).

Re:It's the pledge week question

[heypete]

The loss of government funding wouldn't dramatically affect NPR itself (about 7% comes from "grants and contributions"). The largest single source (34%) of their funding comes from station programming fees.

However, it would affect many of the local public radio stations that re-broadcast NPR (and which, in turn, pay NPR for programming fees). According to this site, 16.4% of the average public radio station's funding comes from government funding and grants from the Corporation from Public Broadcasting. About 14.3% of a public radio station's funding comes from universities, which frequently get income from the feds.

Without funding from the government, many public radio stations would have insufficient funds to continue to operate and would need to close down. NPR would likely be able to continue without much trouble, but local radio stations that actually provide services to their local community would be shut down.

Many of the pledge weeks are for the local stations to raise funding, not for NPR itself (though the NPR radio staff often record "Give $local_station_name money!" ads for the stations).