Anyone ballsy enough to stream using a more widely available, non-Flash codec?
Are you actually arguing that OGG is more widely available to the viewing public than Flash, Real, or WMV?
It's not about "balls." It's about installed base and the marginal utility of supporting OGG compared to formats installed already on most people's machines. I'd love to see an OGG stream of the debates, but I wouldn't claim that it's "more widely available" in an attempt to suggest that people aren't supporting it for illogical reasons.
So this is a serious question. What's so bad about spamming that everyone hates it?
That's an interesting question, actually. I can't speak for everyone, but I can say why it bugs the heck out of me.
It's selfish. It's a stranger putting their greed over the cleanliness of your private communication space.
It's unaccountable, largely. Unlike someone pitching something to you in person or over the phone, the spammer doesn't have to suffer (and thus pretend to care) your irritation at them.
It's often maliciously deceptive. Much of spam includes illegal or fraudulent products, trojan horses, spyware, etc. Stock spam tries to manipulate you into buying bad stocks so that they can profit at your loss. 419 spam tries to trick you into giving away your bank account.
It's insulting. Should I not be insulted by insinuations that my penis is small and that I'm impotent 20-40 times per day? (a) Insulting your intelligence. Wow, every single bank in America uses that same beige backgrounded messages to warn about problems with my account? Really? The only reason these messages get sent out is because 1% of 1% of 1% of people are honestly stupid enough to fall for them. You are being lumped into that potential group of rubes every time someone sends you spam. (b) Insulting your intelligence pt 2. I just got junk mail from Dice.com while writing this post saying that I'd "opted-in" for some partner ads. BULLS---. I *never* opt-in for *any* of this crap, EVER, and I haven't used their site for over a year. "Opt-in" spams really make me wonder who they think they're fooling.
Spam is disruptive. I have my email program set to notify me when email comes in because sometimes that email is important. However, spam causes my attention to be broken for frivolous purposes when I check it without knowing what it is in advance.
Spammers don't care who they hurt. Much of spam is sent by hijacked machines. All my email addresses got no spam for years until people I knew on mailing lists got Outlook viruses that harvested their address book. Spam is deeply tied to criminal behavior in shady products sold and in transmission methods. Counter-point: Much like the drug trade, spam is largely tied up in crime because there's such heavy social and legal pressure against it. Counter-counter-point: Legitimizing spam won't make spam for criminal goods less shady. It'll just open up the torrents for more reputable companies to bother you.
Advertising in general annoys me. I like having some quiet space to myself away from the insistent badgering of people trying to grab my attention to get my money -- a time and space be spent on friends, family, and things I care about. Spam disturbs that.
In summary, spammers are jerks who hide behind the shield of the internet to hawk shady goods to people they believe are idiots -- i.e. you.
Stop posting these long-winded inexpert screeds on the law. You simply don't know what you're talking about as demonstrated repeatedly in article after article, and you do a great disservice to the Slashdot community by foisting your uninformed opinion on us as fact.
Let me point out two parts of Washington law that you might not be aware of that I was able to dig up with mere Google searches (and no need of Westlaw or any other expensive legal tools):
The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence."
Perhaps you should look at RCW 9.73.050. While the court doesn't have jurisdiction to see you fined or prosecuted for actions taken outside of the state completely that would be a violation RCW 9.73.030, they are not obligated to treat your out of state acts as not an ones that would be proscribed. You can't do an end-run around evidentiary rules that way. Note how nothing in the statute requires either party to be in Washington to count as a violation under the section 030 definitions referenced in 050. You conversation, therefore, still meets the exclusion rule.
Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?
Evidence rules are normally relaxed in Small Claims Court for two reasons: 1) To keep the court proceedings simple for non-lawyers. 2) To keep the case from becoming overly long and complicated.
It seems like the second rationale controlled here. Whether you think that's right or not is a matter for Washington voters to fix and not grounds to question the moral integrity of the judges before everyone. The judge may have well only been doing what the law requires. See RCW 12.40.090 mandating informal hearings "with the sole object of dispensing speedy and quick justice between the litigants."
Small claims court is a different animal from real court. It's supposed to be court without need for lawyers. One of the consequences of that is that it doesn't follow all the rules. You've made an impressive effort to learn Washington law, but you haven't researched the problem deeply enough, so please stop writing these screeds about how awful your local judges are.
Lastly, your article once again reached its conclusion very early on and should've stopped there:
The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial, is that it's just not worth it.
Since the title of this article is that that's not true and you haven't really provided any evidence the cost-benefit analysis is any different (instead of rehashing whining about how small claims court didn't go your way AGAIN), the rest of this article should've been cut.
I support this plan. After all, seeing how well "czars" have done on other problems like terrorism and drugs, I imagine that 750,000 copyright czars would be the single swiftest path to restoring pro-consumer balance to copyright.
I'm surprised how many people are having difficulty with this. The 4th amendment unquestionably prohibits this behavior; the evidence was collected under a false warrant (either knowingly or not; the warrant has been accepted by all to be false) and so the evidence is inadmissable. End of story. Any judge finding otherwise is simply making a judgment in violation of the constitution (not like it would be the first).
I'm surprised how many people without a legal background like to make sweeping statements about how clear the Constitution is and how judges are just *wrong* when they disagree with their beliefs.
I've already made post towards the top of the page about the case law that supports them, so I won't repeat it here, but the standard is knowingly or recklessly wrong, not negligently wrong.
That said...
The energy that drives a state towards facism and eventual anarchy lives within each and every one of us and we must be vigilant. Just reading through the comments to this story, it is remarkable how many people are willing to throw away the foundation of a free society to punish one guy. The privilege to detain people without charge, to make "clerical errors" and search people illegally, and to cover up these violations will come from us, not the democrats or the republicans
I agree philosophically with this. I'm not a fan of where a lot of modern 4th Amendment cases have taken us in terms of warrant requirements, but it's the law. Many of us pointing that out are not saying that we're happy with it -- just that that's how it is. The 4th Amendment is a *lot* more ambiguous than you might think.
For example, where in the 4th Amendment does is say that the proper remedy to illegal search is to suppress the evidence instead of to always civilly sue the cops for money (which is what you usually do if they trample on your rights but don't charge you)? How is "probable cause" defined? What is an "unreasonable" search or seizure? What is a "search" or a "seizure" for that matter?
A lot of 4th Amendment law we take for granted, but once you understand how much of the framework of it is judicially created, it becomes easier to understand how much room there is for judges to change and define the structure that arises above the foundation of the text.
Anyway, I wish EPIC would win this case, but their brief is utter garbage compared to the government's. I predict 6-3 or better victory for the government unless they really just wow them in oral arguments. A shame really.
Something like 25% of court cases end in a not guilty result. It's estimated that something like 5% of guilty verdicts are in error. If you take away these protections you are denying innocent people a chance to clear themselves.
I'd like to see a source for your statistics. My law professors say that very few criminal cases get a not guilty result because the prosecutor's office has the option of simply not pursuing a weak case, and I'd *love* to see the methodology used to arrive at a "5% of guilty verdicts are in error" number.
I don't understand, shouldn't any evidence obtained under a false warrant be unusable?
Sadly, not necessarily. The "good faith" doctrine says that evidence seized by officers relying on a facially valid warrant that turns out to later be invalid is still usable in court. The warrant must be issued by a neutral, third-party magistrate and the officers cannot have knowingly or recklessly (not negligently) given bad information for purposes of establishing probable cause, but the 4th Amendment is meant to shield against police misconduct and not simple error in the issuance of warrants.
See United States v. Leon, 468 U.S. 897 (1984) for the full, gory details. Additionally, the government in this case also relies on Arizona v. Evans, 514 U.S. 1 (1995) which states, basically, that the exclusionary rule did not require suppression of evidence obtained through a police officer's good-faith reliance on an error made by a clerk of the court that had issued a warrant for a person's arrest.
I'm sad to say it, but that latter case is *really* on point for this issue, and EPIC does a miserable job of trying to argue against it. The quality of legal writing between the two briefs is night and day. One takes a line of nearly eighty cases and rigorously applies the facts of the case to the rules found therein, and the other references two cases (one only in the concurrence) and makes a bunch of policy arguments about database systems completely unrelated to that used by the sheriff's office in the case at hand.
That stance I can definitely get behind. The problem of laws only being enforced against those who can't afford to defend themselves is a problem across the whole body of the law, not just tax law, but it does really bother me there more than any other non-death penalty area.
(Death and taxes. Funny, I never really noticed that about myself before.)
You know, you make it sound really bad, but all it seems to come down to is letting the IRS hold undercover operations to catch tax cheats. Why is it any more morally offensive to let the IRS pull stings to enforce tax laws than it is for any other cop trying to catch people for breaking any other law?
It's all just part of the template for putting bad ideas into law.
Step 1: A bad idea is formed.
Someone has a bad idea for a bill. This could be a special interest group looking to get Congress to pass some horrible bill to have the government fleece the people for cash to enrich a select few. Sometimes it's the executive branch looking to grab some "emergency" powers by predicting doom and death if Congress doesn't just GIVE unchecked power to fight the terrorists allowed to flourish under their watch, the devastation wrought by a combination of natural disasters and fiddling while Rome burns, or the economic fallout of their fiscal policies.
Lucky us, we got both! Paulson's original proposal was only three pages long because what it basically said was, "Gimme some cash with no oversight, and we'll make the problem go away" -- just like the reconstruction of Iraq! But...
Step 2: Congress balks
Okay, so maybe Congress doesn't like the idea. Either Congress wakes up to the idea that "emergency" powers stick around for a long time and always reach further than Congress intended or maybe some central ideological point of principle keeps them from voting for it or, more likely, they don't see enough kickbacks for their campaign donors yet (more on that below).
So, a compromise plan is worked out. The big interest groups get to have a little say, and the leadership on both sides of the aisle crack their whips on members to vote in favor of a bill no one likes. The bill balloons up to over 100 pages as some semblance of balance is struck.
But people are still willing to stick up for their ideological principles, so we move onto step 3...
3) Sugar-coating with pork.
The one lesson the Senate has learned over 200 years of existence is that if you wrap a lump of dung in enough pork and sweeteners, you can get almost any politician to swallow it.
And so 300 pages of earmarks, tax cuts, and other pork projects are tacked onto the bill as it's welded with another "must pass" spending bill. We've seen the former tactic before when the energy bill that's been bandied about the presidential debates was passed, and we saw the latter tactic of welding horrible idea into the intelligence and war spending bills of the past few years. Nothing gets a Congressman to put aside principles quite like salty, salty pork and the fear of being called out for voting against something unrelated but necessary in the next election.
4) Bury it and hope the media forgets.
So, now you've got tax cuts for arrow & rum makers wedged into the bill and much needed subsidies to rural counties in western states that lost timber revenue that couldn't survive a normal floor vote into the bill. How do we sneak all this pork in without enraging already frothing at the mouth "plebes" who are upset at the fiscal irresponsibility of it all?
Well, we can pass it on a Friday. That worked this time. Other times, we might want to leave it to a voice vote so that no one's name can be attached to the bill and force them to take responsibility for their vote. This time, though, we *want* politician's names attached to the vote. This train wreck had to happen somehow, so we want the people who got the pork to be able to go home and thump their chest about how they fought for their constituents to get their piece of the pie -- their turn at the trough. So, we pass it on Friday and hope the weekend gives time for the outrage to move onto acceptance.
And this is what we call democracy! USA! USA! USA!
What I asked originally is if you were considering the General Welfare Clause as an enumerated power as a small minority of constitutional scholars does. Most consider the General Welfare clause explanatory and the Taxing and Spending Clause as intended to fund the actual enumerated powers which immediately follow. That's why I asked where the Constitution authorizes the action since buying up toxic assets to improve liquidity isn't one of the enumerated powers.
Ah, I see what you are referring to. Unfortunately, you're wrong. United States v. Butler 297 U.S. 1 (1936) is one of the last cases in modern jurisprudence to recognize the Tenth Amendment as a limitation on the enumerated powers, specifically the Taxation and Spending Clause. The Court found that regulation of agricultural production was not an enumerated power and thus was not allowed. While it's not generally considered good law on the Tenth Amendment anymore, since regulation of agriculture falls under the Commerce Clause since Wickard v. Filburn (1941), it was the first case to broadly recognize the General Welfare Clause as granting the Taxing and Spending Clause the authority to spend on matters outside of those enumerated below the clause:
"While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." (Id. at 66, endorsing the Hamiltonian interpretation of the phrase.)
"When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress. How great is the extent of that range, when the subject is the promotion of the general welfare of the United States, we need hardly remark." (Id. at 67.)
In spite of such expansive recognition of General Welfare powers, the court struck down the act on the grounds that regulation of agriculture is something limited to the states, saying, "Hamilton himself . . . never suggested that any power granted by the Constitution could be used for the destruction of local self-government in the states." (Id. at 78.)
Keep in mind that this was the court that struck down several early New Deal efforts. While the Court over the next few years moved to more expansive interpretation of the Commerce Clause, more narrow interpretation of the Tenth Amendment, and a rejection of Lochner's economic substantive due process concepts, it never backed down from this interpretation of the Spending Clause and reiterated it several times. One notorious example would come the next year in Helvering v. Davis, 301 U.S. 619 (1937). There, the Court approved payroll taxes and Social Security as a constitutional expansion of taxing & spending power and backed up the point that the Courts were meant to defer to Congress "unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment." (Id. at 640.)
This is the modern standard. Legal scholars who believe that the Taxing and Spending Clause is limited to the enumerated powers below are either poor scholars of Supreme Court case law or just ideologues in denial. Even the "do it or we'll withhold federal funds" tack that Congress takes sometimes with the states was upheld under this same interpretation 50 years later in South Dakota v. Dole, 483 U.S. 203 (1987). This case
But your original comment was that the Constitution's enumerations of the powers of Congress no longer applied because the Judiciary had eroded any semblance of that having any present relevance through centuries of decisions:
I never said anything of the sort. Frankly I'm at a loss to figure out how you can honestly say the text you quoted says that.
Instead, I backed up another poster on the part of Article I of the Constitution that explicitly enumerate the powers necessary to perform the bail-out bill -- the Taxing and Spending Clause and the General Welfare Clause. In no way does that imply that the enumerated powers no longer have any meaning. It's quite the opposite -- the government can do those things because they are enumerated powers, and the Tenth Amendment is largely irrelevant because the court has long held that it provides no barrier to the exercise of those powers explicitly granted to the federal government. The days of reading power into the Tenth Amendment to limit the enumerated powers is long gone (and rightly so, as it's obvious that the enumerated powers are exactly those powers "delegated to the United States" that the Tenth Amendment refers to)!
The text you quoted was my disagreement with the notion that the Supreme Court made rulings during the New Deal era that were "glaringly Unconstitutional." As stated in multiple posts in this thread, constitutional is what the Supreme Court says it is, nothing more.
There is no sacred, platonic principle of constitutionality that we as men only touch upon in our grasping to understand and discover the natural law. People who say that the Supreme Court made an unconstitutional ruling are really just saying, "Constitutional is what *I* say it is, not the so-called experts." I have no respect for that.
Yet in the binding precedent world any Superior Court in the State of Indiana was compelled to allow tortured confessions from the time Watts was decided until it was overturned by the SCOTUS, no? And if the SCOTUS had declined to hear the case that would have stood until the Indiana Supreme Court was replaced.
Yes (ignoring the the Circuit Court gets first stab at it). Unfortunately, this would be the case -- just as state weren't allowed to grant citizenship for former slaves or their descendants due to Dred Scott. I'm not pretending that unjust decisions never happen.
However, one thing the argument for persuasive precedent ignores is that not all judges are created equal. Not all judges go through the same level of scrutiny before taking their positions and not all have the same level of expertise. It is undeniable that generally speaking the higher up in the court hierarchy you go, the higher quality of judge you meet in terms of experience and knowledge of the law -- particularly when you get further away from partisan elections.
In other words, fundamentally unjust and facially wrong opinions decrease in likeliness the higher you go up because the judges there are far more knowledgeable about the law and are weighed with more responsibility for getting it right for future generations. A trial court judge doesn't worry about setting precedent if they're wrong. A Supreme Court judge very much worries about the legacy of their decisions and will not rule without deep research and thought.
Again, not all legal opinions are equal. Expertise and experience matters as does the relative burden placed on one's shoulders to get it right for future cases.
For the sake of clarity, am I correct in understanding that it's your contention that a constitutionally limited legislative branch is somewhere between unlikely and impossible under a binding stare decisis system?
No, that's your contention. Mine is the opposite -- that it's impossible under the system you propose.
A system with binding precedent provides a solid foundation of caselaw that can inform the legislature of whether or not they can "get away with" whatever bill they're planning. With a persuasive system, they may be more inclined to roll the dice and see if the current personalities on the court will go their way. Under a binding system, current justices are reluctant to overturn the apple cart on a whim. If you read enough Supreme Court decisions, you'll see decisions where the court says effectively, "I don't really like the law as it stands, but I can't justify uprooting it all just for this situation." Justices on all sides of the political spectrum do it, from Scalia to Souter.
This provides stable, consistent law that provides a predictable framework for lawmaking, and leaves legislatures passing unconstitutional laws in the position of "should've known better." Without binding precedent, there's no reason not to just throw everything at the wall and see what sticks.
It depends. There are two kinds of "cat captchas" that I'm aware of. One is the one where you have to identify whether a color image is of a dog or cat, as in KittenAuth or Microsoft's Asirra. That would be very impressive (though the Asirra team points out that KittenAuth is weak because it uses too few images).
The other is the kind where cat & dog icons tell you which letters to pick from a string. If you've actually seen these captchas, it's not *that* hard to believe. Here's a link showing you what one looks like.
All the captcha-breaker has to do is learn to recognize the reused cat & dog icons and separate them out from the letters. It's not that hard compared to recognizing distorted and warped letters, in my opinion.
Minor correction. There was only victim in this case. I was confusing the facts of this case with another one involving two men being beaten with leather straps that I also dug up for a paper on torture. The due process issue that was the core of my argument is still correct, though.
Right, but just because they've adopted a binding system of stare decisis in a manner incompatible with Constitutional rule doesn't make it Constitutional. A persuasive system would allow the judges to uphold their oaths.
A persuasive system would make it no more or less constitutional than a binding system. After all, "constitutional" would still be a matter of court interpretation. All you do is shift around the authority to do so.
A persuasive system has the worse side effect of substituting rule of man for rule of law. While you take serious issue with the binding precedent of "wrong" decisions, you overlook the importance of binding precedent for right decisions. Take the case of Watts v. Indiana, 338 U.S. 49 (1949). This is a horrible case involving two young black men who were arrested for a murder they didn't commit, tortured into confession, and then had their confessions admitted as evidence at the trial court over their objections. The Indiana State Supreme Court ruled that admitting such confessions did not violate the prisoners' due process rights and affirmed their conviction. The United State Supreme Court rightly overturned this decision.
Now, in a binding precedent world, no court of this nation finds itself free to allow confessions under torture to be admitted in court. In a persuasive precedent world, the state of Indiana (and all other states with racist judiciaries) would find themselves free to merely consider that opinion "persuasive" and continue to allow black people to be tortured into confessing to crimes they didn't commit. The rule of law against torture and coerced confessions would be subverted to the rule of man in favor of racist policies and injustice. Precedent means only as much as a judge's personal prejudices allow it in such a system, and the justice system would become one of personal fiefdoms and local corruption instead of a uniform system of the law.
The only matter of recourse would be to have each decision appealed up to a higher level, and as that article notes, the Supreme Court (and Circuit Courts) can only hear so many cases per year. A single corrupt judge who cares little for what is constitutional might have all of their decisions overturned, but if the problem becomes endemic, then a lack of binding precedent would prevent courts from tackling the system efficiently and would frankly render the appeals process pointless when every judge is an equal peer for determining constitutional muster.
You may complain about how there are "unconstitutional" decisions by the body invested with the power of deciding what is and isn't constitutional, but you are too quick to throw out the baby with the bathwater.
Most human epidemic diseases have an identifiable animal origin. The book "Guns, Germs, and Steel" notes this as one of the curses (and blessings in times of war and conquest) of Eurasian agriculture that allowed us to easily take over the New World and yet find it hard to take over Southeast Asia. We know roughly what century or millenia many human plagues originated in and what animals they came from -- think flu from pigs and birds, tuberculosis from cattle and badgers, black plague from rats via fleas.
AIDS is just another disease to recently transfer from animal to human hosts. Even though it's considered sexually transmitted, there are a number of ways it could've gotten into human hosts without breaking the bestiality taboo -- attacks by infected chimpanzees, eating improperly cooked bushmeat (while having a mouthsore), etc. (Bushmeat is where we think Ebola originated from, as well, and we've only been aware of its existence for 30-40 years.)
AIDS's deadliness is one indication of its youth. New diseases which aren't adapted well to their hosts yet often run rampant and kill them off quickly until milder strains (and more resistant hosts) allow for epidemics to linger in the population without killing off all available hosts. Think of new diseases as any other invasive species not yet adapted to its environment (and vice versa). SIV doesn't cause fatal symptoms in simian hosts, for example, but its newly human-adapted HIV strains causes AIDS in humans. Possibly over time, AIDS would be replaced in the human population with a milder disease, like we see with flu strains from year to year. It's hard to tell without giving it a few hundred or thousand more years of evolution to be sure.
So, it's not that strange. We're just "lucky" to see it in its early stages of adapting to its new host species. I'm sure there are more potential human diseases out there that we just haven't encountered yet because we don't have much contact with their current hosts. Cheerful thought, isn't it?
The first ten Amendments do not grant anything, but rather enumerate rights held by the people by virtue of the fact that they're human beings.
Semantics. Rights only exist so far as they can't be taken away from you. Your right to live only exists because it's illegal for people to murder you. Your right to free speech only exists because it's illegal to restrain your speech. In absence of those restraints against other parties, your rights don't exist.
By banning the government from taking certain actions against you, the Constitution creates those rights, but there is nothing that gives you those rights if you live under a government that doesn't protect them. There are only inherent human rights in an abstract, moral sense and not in any real, concrete sense. It's up to us to make them real.
The whole idea of the Constitution is that the government can only derive its power from the consent of the governed. *Any* power the government has is that which the people explicitly give it, and any power not mentioned is implicitly held by the people.
Only because the Constitution says so. The problem is that we explicitly gave the government very broad powers in the main body of the Constitution -- powers that people thinking of ratifying the Constitution were afraid of. The Bill of Rights was created to take back the powers that the people felt were too much for the government to have.
And now to take a point out of order...
Alexander Hamilton spent a great deal of energy in Federalist #84 arguing against the inclusion of an explicit bill of rights in the new constitution on the basis that it would be misinterpreted exactly as you've done.
And that's why the people created the 9th Amendment to explicitly state that that's *not* what the Bill of Rights is. It's the catch-all, "just because we didn't think of it doesn't mean that it's not a right" clause.
From your viewpoint, exactly how is the government supposed to have come into possession of the rights that it so magnanimously gives back to its citizens?
The citizens granted those rights to each other. The citizens gave rights to the federal government in the Constitution by accepting the power of the government over them, and the citizens took back rights in the Bill of Rights by barring the government from using its power in certain ways. It is the citizens who define what our rights are. Our rights only exist, just as the government does, with the mandate of the people.
The first 20 pages of the decision, which are all about legal standing, jurisdiction, and overbreadth, made my eyes glaze over. I'm not analyzing those at all except to point out that on most of those issues, the lower court came to exactly the opposite conclusion from that of the Virginia Supreme Court, and there is no reason to think that the higher court is any more likely to be "correct" than the lower court (even granting the assumption that there is an objectively "correct" answer to these questions). Any time you feel intimidated by "experts", it's helpful to step back and ask whether the alleged experts even agree with each other.
Well this quote really gets the article started off with a bang. First of all, the expertise of a trial court and a state supreme court should not be presumed to be equal. A trial court judge could be as fresh as the day is young, but a supreme court justice there has to be elected by the legislature and has to go through a vetting process that favors experience.
This sort of "all experts are equal" attitude confuses issues like global warming, where there are clearly people more knowledgeable about a subject than others, but the public is tricked into believing that "balance" demands we treat anyone with an opinion as equal to anyone else.
Now, there are two possible definitions of "anonymity" to consider: (1) you can be anonymous to the extent that ordinary citizens reading your content cannot determine your identity without a subpoena; or (2) you can be anonymous to the extent that even the government, armed with subpoenas and wiretaps, can never find out who you are.
For purposes of government action against citizens violating the law, the latter is the only one that matters. (Well, that plus what the government can't find out without violating the 4th Amendment.) The former is of little relevance. The courts shouldn't rest all First Amendment protections on whether or not the average person can figure out how you are instead of the bodies entrusted with the duty to enforce the laws against you. Otherwise, anonymity would be meaningless in a legal sense except as an excuse to provide a mirage of privacy for citizens.
But there are even ways to be anonymous in the second sense -- such that not even the government could identify you -- without resorting to forged e-mail headers. You can create Hotmail and Gmail accounts without giving the providers any of your true information.
Courts generally will not favor solutions that revolve around you fraudulently entering into an agreement with email service providers who require you to provide accurate information when signing up and agreeing to their service contracts.
Furthermore, you always have to give an email address for confirmation when signing up for such services, and eventually if you peel back enough layers of registration, the courts can find out an account where you had to give real information to someone (whoever you pay for your initial email account), so this is no guarantee of privacy at all.
In all of these cases, the receiving mail server can see the IP address of the sending machine, so a government subpoena would usually be enough to determine the sender's identity. (I know you all know this, but I have delusions that some helpful clerk will print out this article and explain this to the judge.)
Didn't you just completely defeat this argument by mentioning the use of Tor a few paragraphs above?
Also, while the court is interested in protecting legitimate political or commercial speech (and thus speech not made by illegal activities), most spammers "fake" IP addresses by sending mail from virus hijacked machines, so a government subpoena is useless to find their identity in the case of a real spammer.
It would presumably be unconstitutional for an anti-spam law to prohibit anonymous political e-mails which attempt
I think it's time to go back to law school until you get this part right.
Are you disputing this? Do you have any logical basis for this statement or are you just asserting that I'm wrong without any supporting evidence that might allow one to question your own knowledge? This is how Amendments like the 1st through 5th, 8th, and 9th are viewed, after all.
Okay, congratulations, you've proved you have free Westlaw access, which means you're a student (but shame on your for not having Blue Book-correct cites; I hope you're not on Law Review), and so you deserve a little more respect that J. Random Slashdotter who thinks he knows the law.
Damnation. You're a practicing attorney, aren't you? Alright, I've got to be a little more humble and back up my arguments a little more forcefully. (And I'm not following formal style because this is just an informal internet geek fight. I'll add some links for people who don't have access to services like Westlaw.)
It says "the rest doesn't belong to the Federal government." Sure, you've shown that you favor a more expansive Commerce Clause than I do, but that's orthogonal to my point, which is that the 10th Amendment does, in fact, say something about it ("strong" teeth is your phrase, not mine). You're talking about matters of degree, which are up for reasonable debate. [...] In any case, all constitutional theorists agree that the states have some powers reserved to them (if you can dig up a single remotely credible scholar who says otherwise, I'd like to see it; even Ginsburg will occasionally defer to the autonomy of the states).
I'd agree on the last point. New York v. United States 488 U.S. 1041 (1992) makes clear that Congress can't compel state action through promises of penalties. (See Part B(1) of the majority opinion). The rest of the opinion provides good support for the notion that even if you can't use the stick, you can use the carrot.
For Commerce Clause purposes, Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) threw the Tenth Amendment out the window. The court rejected the standard introduced National League of Cities v. Usery, 426 U.S. 833 (1976) which required courts to examine whether a law passed by Congress interfered with "areas of traditional governmental functions."
"Our examination of this 'function' standard applied in these and other cases over the last eight years now persuades us that the attempt to draw the boundaries of state regulatory immunity in terms of "traditional governmental function" is not only unworkable but is also inconsistent with established principles of federalism and, indeed, with those very federalism principles on which National League of Cities purported to rest. That case, accordingly, is overruled." Garcia at 531.
The problem following Garcia is that they never replaced the Usery standard with anything new! Blackmum explicitly refused to do so: "These cases do not require us to identify or define what affirmative limits the constitutional structure might impose on federal action affecting the States under the Commerce Clause" (Garcia at 556). No case following it has ruled that an exercise of Commerce Clause power violated the Tenth Amendment. Looking back to what preceded Usery, all we have is post-Lochner caselaw that treats the 10th Amendment as a mere truism.
For example, take the following frequently cited quote from United States v. Darby Lumber Co., 312 U.S. 100 (1941) (which overturned prior precedent that gave effect to the 10th Amendment):
"The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay
You're not going after the 'general Welfare as an enumerated power' angle, are you?
The "Taxing and Spending Clause," "Spending Clause," and "General Welfare Clause" all refer to the same text (just different parts of it):
Article 1, Section 8, Clause 1: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"
Court cases have consistently found no limitation on what Congress can spend your tax dollars on since United States v. Butler. That clause gives Congress the ability to spend tax dollars to purchase toxic assets from the financial industry.
We may not like how they're exercising that power, but there's absolutely no question that they have it to anyone who's studied Supreme Court precedent on the matter.
Slashdot Mirror
Anyone ballsy enough to stream using a more widely available, non-Flash codec?
Are you actually arguing that OGG is more widely available to the viewing public than Flash, Real, or WMV?
It's not about "balls." It's about installed base and the marginal utility of supporting OGG compared to formats installed already on most people's machines. I'd love to see an OGG stream of the debates, but I wouldn't claim that it's "more widely available" in an attempt to suggest that people aren't supporting it for illogical reasons.
Is logic now optional for biologists?
*cough* The article refers to arthopods as being a genus. You can guarantee that no biologist wrote the article.
If you apply logic.
So this is a serious question. What's so bad about spamming that everyone hates it?
That's an interesting question, actually. I can't speak for everyone, but I can say why it bugs the heck out of me.
(a) Insulting your intelligence. Wow, every single bank in America uses that same beige backgrounded messages to warn about problems with my account? Really? The only reason these messages get sent out is because 1% of 1% of 1% of people are honestly stupid enough to fall for them. You are being lumped into that potential group of rubes every time someone sends you spam.
(b) Insulting your intelligence pt 2. I just got junk mail from Dice.com while writing this post saying that I'd "opted-in" for some partner ads. BULLS---. I *never* opt-in for *any* of this crap, EVER, and I haven't used their site for over a year. "Opt-in" spams really make me wonder who they think they're fooling.
Counter-point: Much like the drug trade, spam is largely tied up in crime because there's such heavy social and legal pressure against it.
Counter-counter-point: Legitimizing spam won't make spam for criminal goods less shady. It'll just open up the torrents for more reputable companies to bother you.
In summary, spammers are jerks who hide behind the shield of the internet to hawk shady goods to people they believe are idiots -- i.e. you.
It's disruptive
And shutting down huge swaths of the country whenever the President goes somewhere isn't?
No one has to suffer through Oliver Stone treatments of that.
There is not a functioning separatist movement in Alaska any more than there is in Texas...
Just because it's not functional doesn't mean it's not anti-American.
I mean, if incompetence was an excuse, no one would care about Bill Ayers and the Weather Underground.
Stop posting these long-winded inexpert screeds on the law. You simply don't know what you're talking about as demonstrated repeatedly in article after article, and you do a great disservice to the Slashdot community by foisting your uninformed opinion on us as fact.
Let me point out two parts of Washington law that you might not be aware of that I was able to dig up with mere Google searches (and no need of Westlaw or any other expensive legal tools):
The judge still said I couldn't use it as evidence in Washington. This raises an interesting question. My understanding is that the rules of evidence in Washington don't say "You can't use a secretly taped phone call as evidence."
Perhaps you should look at RCW 9.73.050. While the court doesn't have jurisdiction to see you fined or prosecuted for actions taken outside of the state completely that would be a violation RCW 9.73.030, they are not obligated to treat your out of state acts as not an ones that would be proscribed. You can't do an end-run around evidentiary rules that way. Note how nothing in the statute requires either party to be in Washington to count as a violation under the section 030 definitions referenced in 050. You conversation, therefore, still meets the exclusion rule.
Evidence are sometimes relaxed in the other direction -- evidence that would be excluded from a regular trial is sometimes allowed to be presented -- but what's the point of making Small Claims more restrictive, excluding evidence that is explicitly allowed under the rules?
Evidence rules are normally relaxed in Small Claims Court for two reasons:
1) To keep the court proceedings simple for non-lawyers.
2) To keep the case from becoming overly long and complicated.
It seems like the second rationale controlled here. Whether you think that's right or not is a matter for Washington voters to fix and not grounds to question the moral integrity of the judges before everyone. The judge may have well only been doing what the law requires. See RCW 12.40.090 mandating informal hearings "with the sole object of dispensing speedy and quick justice between the litigants."
Small claims court is a different animal from real court. It's supposed to be court without need for lawyers. One of the consequences of that is that it doesn't follow all the rules. You've made an impressive effort to learn Washington law, but you haven't researched the problem deeply enough, so please stop writing these screeds about how awful your local judges are.
Lastly, your article once again reached its conclusion very early on and should've stopped there:
The traditional cost-benefit analysis of prosecuting people who lie under oath in a civil trial, is that it's just not worth it.
Since the title of this article is that that's not true and you haven't really provided any evidence the cost-benefit analysis is any different (instead of rehashing whining about how small claims court didn't go your way AGAIN), the rest of this article should've been cut.
I support this plan. After all, seeing how well "czars" have done on other problems like terrorism and drugs, I imagine that 750,000 copyright czars would be the single swiftest path to restoring pro-consumer balance to copyright.
"I'm helping!"
I'm surprised how many people are having difficulty with this. The 4th amendment unquestionably prohibits this behavior; the evidence was collected under a false warrant (either knowingly or not; the warrant has been accepted by all to be false) and so the evidence is inadmissable. End of story. Any judge finding otherwise is simply making a judgment in violation of the constitution (not like it would be the first).
I'm surprised how many people without a legal background like to make sweeping statements about how clear the Constitution is and how judges are just *wrong* when they disagree with their beliefs.
I've already made post towards the top of the page about the case law that supports them, so I won't repeat it here, but the standard is knowingly or recklessly wrong, not negligently wrong.
That said...
The energy that drives a state towards facism and eventual anarchy lives within each and every one of us and we must be vigilant. Just reading through the comments to this story, it is remarkable how many people are willing to throw away the foundation of a free society to punish one guy. The privilege to detain people without charge, to make "clerical errors" and search people illegally, and to cover up these violations will come from us, not the democrats or the republicans
I agree philosophically with this. I'm not a fan of where a lot of modern 4th Amendment cases have taken us in terms of warrant requirements, but it's the law. Many of us pointing that out are not saying that we're happy with it -- just that that's how it is. The 4th Amendment is a *lot* more ambiguous than you might think.
For example, where in the 4th Amendment does is say that the proper remedy to illegal search is to suppress the evidence instead of to always civilly sue the cops for money (which is what you usually do if they trample on your rights but don't charge you)? How is "probable cause" defined? What is an "unreasonable" search or seizure? What is a "search" or a "seizure" for that matter?
A lot of 4th Amendment law we take for granted, but once you understand how much of the framework of it is judicially created, it becomes easier to understand how much room there is for judges to change and define the structure that arises above the foundation of the text.
Anyway, I wish EPIC would win this case, but their brief is utter garbage compared to the government's. I predict 6-3 or better victory for the government unless they really just wow them in oral arguments. A shame really.
Something like 25% of court cases end in a not guilty result. It's estimated that something like 5% of guilty verdicts are in error. If you take away these protections you are denying innocent people a chance to clear themselves.
I'd like to see a source for your statistics. My law professors say that very few criminal cases get a not guilty result because the prosecutor's office has the option of simply not pursuing a weak case, and I'd *love* to see the methodology used to arrive at a "5% of guilty verdicts are in error" number.
I don't understand, shouldn't any evidence obtained under a false warrant be unusable?
Sadly, not necessarily. The "good faith" doctrine says that evidence seized by officers relying on a facially valid warrant that turns out to later be invalid is still usable in court. The warrant must be issued by a neutral, third-party magistrate and the officers cannot have knowingly or recklessly (not negligently) given bad information for purposes of establishing probable cause, but the 4th Amendment is meant to shield against police misconduct and not simple error in the issuance of warrants.
See United States v. Leon , 468 U.S. 897 (1984) for the full, gory details. Additionally, the government in this case also relies on Arizona v. Evans, 514 U.S. 1 (1995) which states, basically, that the exclusionary rule did not require suppression of evidence obtained through a police officer's good-faith reliance on an error made by a clerk of the court that had issued a warrant for a person's arrest.
I'm sad to say it, but that latter case is *really* on point for this issue, and EPIC does a miserable job of trying to argue against it. The quality of legal writing between the two briefs is night and day. One takes a line of nearly eighty cases and rigorously applies the facts of the case to the rules found therein, and the other references two cases (one only in the concurrence) and makes a bunch of policy arguments about database systems completely unrelated to that used by the sheriff's office in the case at hand.
EPIC fail.
That stance I can definitely get behind. The problem of laws only being enforced against those who can't afford to defend themselves is a problem across the whole body of the law, not just tax law, but it does really bother me there more than any other non-death penalty area.
(Death and taxes. Funny, I never really noticed that about myself before.)
You know, you make it sound really bad, but all it seems to come down to is letting the IRS hold undercover operations to catch tax cheats. Why is it any more morally offensive to let the IRS pull stings to enforce tax laws than it is for any other cop trying to catch people for breaking any other law?
It's all just part of the template for putting bad ideas into law.
Step 1: A bad idea is formed.
Someone has a bad idea for a bill. This could be a special interest group looking to get Congress to pass some horrible bill to have the government fleece the people for cash to enrich a select few. Sometimes it's the executive branch looking to grab some "emergency" powers by predicting doom and death if Congress doesn't just GIVE unchecked power to fight the terrorists allowed to flourish under their watch, the devastation wrought by a combination of natural disasters and fiddling while Rome burns, or the economic fallout of their fiscal policies.
Lucky us, we got both! Paulson's original proposal was only three pages long because what it basically said was, "Gimme some cash with no oversight, and we'll make the problem go away" -- just like the reconstruction of Iraq! But...
Step 2: Congress balks
Okay, so maybe Congress doesn't like the idea. Either Congress wakes up to the idea that "emergency" powers stick around for a long time and always reach further than Congress intended or maybe some central ideological point of principle keeps them from voting for it or, more likely, they don't see enough kickbacks for their campaign donors yet (more on that below).
So, a compromise plan is worked out. The big interest groups get to have a little say, and the leadership on both sides of the aisle crack their whips on members to vote in favor of a bill no one likes. The bill balloons up to over 100 pages as some semblance of balance is struck.
But people are still willing to stick up for their ideological principles, so we move onto step 3...
3) Sugar-coating with pork.
The one lesson the Senate has learned over 200 years of existence is that if you wrap a lump of dung in enough pork and sweeteners, you can get almost any politician to swallow it.
And so 300 pages of earmarks, tax cuts, and other pork projects are tacked onto the bill as it's welded with another "must pass" spending bill. We've seen the former tactic before when the energy bill that's been bandied about the presidential debates was passed, and we saw the latter tactic of welding horrible idea into the intelligence and war spending bills of the past few years. Nothing gets a Congressman to put aside principles quite like salty, salty pork and the fear of being called out for voting against something unrelated but necessary in the next election.
4) Bury it and hope the media forgets.
So, now you've got tax cuts for arrow & rum makers wedged into the bill and much needed subsidies to rural counties in western states that lost timber revenue that couldn't survive a normal floor vote into the bill. How do we sneak all this pork in without enraging already frothing at the mouth "plebes" who are upset at the fiscal irresponsibility of it all?
Well, we can pass it on a Friday. That worked this time. Other times, we might want to leave it to a voice vote so that no one's name can be attached to the bill and force them to take responsibility for their vote. This time, though, we *want* politician's names attached to the vote. This train wreck had to happen somehow, so we want the people who got the pork to be able to go home and thump their chest about how they fought for their constituents to get their piece of the pie -- their turn at the trough. So, we pass it on Friday and hope the weekend gives time for the outrage to move onto acceptance.
And this is what we call democracy! USA! USA! USA!
What I asked originally is if you were considering the General Welfare Clause as an enumerated power as a small minority of constitutional scholars does. Most consider the General Welfare clause explanatory and the Taxing and Spending Clause as intended to fund the actual enumerated powers which immediately follow. That's why I asked where the Constitution authorizes the action since buying up toxic assets to improve liquidity isn't one of the enumerated powers.
Ah, I see what you are referring to. Unfortunately, you're wrong. United States v. Butler 297 U.S. 1 (1936) is one of the last cases in modern jurisprudence to recognize the Tenth Amendment as a limitation on the enumerated powers, specifically the Taxation and Spending Clause. The Court found that regulation of agricultural production was not an enumerated power and thus was not allowed. While it's not generally considered good law on the Tenth Amendment anymore, since regulation of agriculture falls under the Commerce Clause since Wickard v. Filburn (1941), it was the first case to broadly recognize the General Welfare Clause as granting the Taxing and Spending Clause the authority to spend on matters outside of those enumerated below the clause:
"While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." (Id. at 66, endorsing the Hamiltonian interpretation of the phrase.)
"When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress. How great is the extent of that range, when the subject is the promotion of the general welfare of the United States, we need hardly remark." (Id. at 67.)
In spite of such expansive recognition of General Welfare powers, the court struck down the act on the grounds that regulation of agriculture is something limited to the states, saying, "Hamilton himself . . . never suggested that any power granted by the Constitution could be used for the destruction of local self-government in the states." (Id. at 78.)
Keep in mind that this was the court that struck down several early New Deal efforts. While the Court over the next few years moved to more expansive interpretation of the Commerce Clause, more narrow interpretation of the Tenth Amendment, and a rejection of Lochner's economic substantive due process concepts, it never backed down from this interpretation of the Spending Clause and reiterated it several times. One notorious example would come the next year in Helvering v. Davis , 301 U.S. 619 (1937). There, the Court approved payroll taxes and Social Security as a constitutional expansion of taxing & spending power and backed up the point that the Courts were meant to defer to Congress "unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment." (Id. at 640.)
This is the modern standard. Legal scholars who believe that the Taxing and Spending Clause is limited to the enumerated powers below are either poor scholars of Supreme Court case law or just ideologues in denial. Even the "do it or we'll withhold federal funds" tack that Congress takes sometimes with the states was upheld under this same interpretation 50 years later in South Dakota v. Dole , 483 U.S. 203 (1987). This case
But your original comment was that the Constitution's enumerations of the powers of Congress no longer applied because the Judiciary had eroded any semblance of that having any present relevance through centuries of decisions:
I never said anything of the sort. Frankly I'm at a loss to figure out how you can honestly say the text you quoted says that.
Instead, I backed up another poster on the part of Article I of the Constitution that explicitly enumerate the powers necessary to perform the bail-out bill -- the Taxing and Spending Clause and the General Welfare Clause. In no way does that imply that the enumerated powers no longer have any meaning. It's quite the opposite -- the government can do those things because they are enumerated powers, and the Tenth Amendment is largely irrelevant because the court has long held that it provides no barrier to the exercise of those powers explicitly granted to the federal government. The days of reading power into the Tenth Amendment to limit the enumerated powers is long gone (and rightly so, as it's obvious that the enumerated powers are exactly those powers "delegated to the United States" that the Tenth Amendment refers to)!
The text you quoted was my disagreement with the notion that the Supreme Court made rulings during the New Deal era that were "glaringly Unconstitutional." As stated in multiple posts in this thread, constitutional is what the Supreme Court says it is, nothing more.
There is no sacred, platonic principle of constitutionality that we as men only touch upon in our grasping to understand and discover the natural law. People who say that the Supreme Court made an unconstitutional ruling are really just saying, "Constitutional is what *I* say it is, not the so-called experts." I have no respect for that.
Yet in the binding precedent world any Superior Court in the State of Indiana was compelled to allow tortured confessions from the time Watts was decided until it was overturned by the SCOTUS, no? And if the SCOTUS had declined to hear the case that would have stood until the Indiana Supreme Court was replaced.
Yes (ignoring the the Circuit Court gets first stab at it). Unfortunately, this would be the case -- just as state weren't allowed to grant citizenship for former slaves or their descendants due to Dred Scott. I'm not pretending that unjust decisions never happen.
However, one thing the argument for persuasive precedent ignores is that not all judges are created equal. Not all judges go through the same level of scrutiny before taking their positions and not all have the same level of expertise. It is undeniable that generally speaking the higher up in the court hierarchy you go, the higher quality of judge you meet in terms of experience and knowledge of the law -- particularly when you get further away from partisan elections.
In other words, fundamentally unjust and facially wrong opinions decrease in likeliness the higher you go up because the judges there are far more knowledgeable about the law and are weighed with more responsibility for getting it right for future generations. A trial court judge doesn't worry about setting precedent if they're wrong. A Supreme Court judge very much worries about the legacy of their decisions and will not rule without deep research and thought.
Again, not all legal opinions are equal. Expertise and experience matters as does the relative burden placed on one's shoulders to get it right for future cases.
For the sake of clarity, am I correct in understanding that it's your contention that a constitutionally limited legislative branch is somewhere between unlikely and impossible under a binding stare decisis system?
No, that's your contention. Mine is the opposite -- that it's impossible under the system you propose.
A system with binding precedent provides a solid foundation of caselaw that can inform the legislature of whether or not they can "get away with" whatever bill they're planning. With a persuasive system, they may be more inclined to roll the dice and see if the current personalities on the court will go their way. Under a binding system, current justices are reluctant to overturn the apple cart on a whim. If you read enough Supreme Court decisions, you'll see decisions where the court says effectively, "I don't really like the law as it stands, but I can't justify uprooting it all just for this situation." Justices on all sides of the political spectrum do it, from Scalia to Souter.
This provides stable, consistent law that provides a predictable framework for lawmaking, and leaves legislatures passing unconstitutional laws in the position of "should've known better." Without binding precedent, there's no reason not to just throw everything at the wall and see what sticks.
It depends. There are two kinds of "cat captchas" that I'm aware of. One is the one where you have to identify whether a color image is of a dog or cat, as in KittenAuth or Microsoft's Asirra. That would be very impressive (though the Asirra team points out that KittenAuth is weak because it uses too few images).
The other is the kind where cat & dog icons tell you which letters to pick from a string. If you've actually seen these captchas, it's not *that* hard to believe. Here's a link showing you what one looks like.
All the captcha-breaker has to do is learn to recognize the reused cat & dog icons and separate them out from the letters. It's not that hard compared to recognizing distorted and warped letters, in my opinion.
Minor correction. There was only victim in this case. I was confusing the facts of this case with another one involving two men being beaten with leather straps that I also dug up for a paper on torture. The due process issue that was the core of my argument is still correct, though.
Right, but just because they've adopted a binding system of stare decisis in a manner incompatible with Constitutional rule doesn't make it Constitutional. A persuasive system would allow the judges to uphold their oaths.
A persuasive system would make it no more or less constitutional than a binding system. After all, "constitutional" would still be a matter of court interpretation. All you do is shift around the authority to do so.
A persuasive system has the worse side effect of substituting rule of man for rule of law. While you take serious issue with the binding precedent of "wrong" decisions, you overlook the importance of binding precedent for right decisions. Take the case of Watts v. Indiana , 338 U.S. 49 (1949). This is a horrible case involving two young black men who were arrested for a murder they didn't commit, tortured into confession, and then had their confessions admitted as evidence at the trial court over their objections. The Indiana State Supreme Court ruled that admitting such confessions did not violate the prisoners' due process rights and affirmed their conviction. The United State Supreme Court rightly overturned this decision.
Now, in a binding precedent world, no court of this nation finds itself free to allow confessions under torture to be admitted in court. In a persuasive precedent world, the state of Indiana (and all other states with racist judiciaries) would find themselves free to merely consider that opinion "persuasive" and continue to allow black people to be tortured into confessing to crimes they didn't commit. The rule of law against torture and coerced confessions would be subverted to the rule of man in favor of racist policies and injustice. Precedent means only as much as a judge's personal prejudices allow it in such a system, and the justice system would become one of personal fiefdoms and local corruption instead of a uniform system of the law.
The only matter of recourse would be to have each decision appealed up to a higher level, and as that article notes, the Supreme Court (and Circuit Courts) can only hear so many cases per year. A single corrupt judge who cares little for what is constitutional might have all of their decisions overturned, but if the problem becomes endemic, then a lack of binding precedent would prevent courts from tackling the system efficiently and would frankly render the appeals process pointless when every judge is an equal peer for determining constitutional muster.
You may complain about how there are "unconstitutional" decisions by the body invested with the power of deciding what is and isn't constitutional, but you are too quick to throw out the baby with the bathwater.
Most human epidemic diseases have an identifiable animal origin. The book "Guns, Germs, and Steel" notes this as one of the curses (and blessings in times of war and conquest) of Eurasian agriculture that allowed us to easily take over the New World and yet find it hard to take over Southeast Asia. We know roughly what century or millenia many human plagues originated in and what animals they came from -- think flu from pigs and birds, tuberculosis from cattle and badgers, black plague from rats via fleas.
AIDS is just another disease to recently transfer from animal to human hosts. Even though it's considered sexually transmitted, there are a number of ways it could've gotten into human hosts without breaking the bestiality taboo -- attacks by infected chimpanzees, eating improperly cooked bushmeat (while having a mouthsore), etc. (Bushmeat is where we think Ebola originated from, as well, and we've only been aware of its existence for 30-40 years.)
AIDS's deadliness is one indication of its youth. New diseases which aren't adapted well to their hosts yet often run rampant and kill them off quickly until milder strains (and more resistant hosts) allow for epidemics to linger in the population without killing off all available hosts. Think of new diseases as any other invasive species not yet adapted to its environment (and vice versa). SIV doesn't cause fatal symptoms in simian hosts, for example, but its newly human-adapted HIV strains causes AIDS in humans. Possibly over time, AIDS would be replaced in the human population with a milder disease, like we see with flu strains from year to year. It's hard to tell without giving it a few hundred or thousand more years of evolution to be sure.
So, it's not that strange. We're just "lucky" to see it in its early stages of adapting to its new host species. I'm sure there are more potential human diseases out there that we just haven't encountered yet because we don't have much contact with their current hosts. Cheerful thought, isn't it?
The first ten Amendments do not grant anything, but rather enumerate rights held by the people by virtue of the fact that they're human beings.
Semantics. Rights only exist so far as they can't be taken away from you. Your right to live only exists because it's illegal for people to murder you. Your right to free speech only exists because it's illegal to restrain your speech. In absence of those restraints against other parties, your rights don't exist.
By banning the government from taking certain actions against you, the Constitution creates those rights, but there is nothing that gives you those rights if you live under a government that doesn't protect them. There are only inherent human rights in an abstract, moral sense and not in any real, concrete sense. It's up to us to make them real.
The whole idea of the Constitution is that the government can only derive its power from the consent of the governed. *Any* power the government has is that which the people explicitly give it, and any power not mentioned is implicitly held by the people.
Only because the Constitution says so. The problem is that we explicitly gave the government very broad powers in the main body of the Constitution -- powers that people thinking of ratifying the Constitution were afraid of. The Bill of Rights was created to take back the powers that the people felt were too much for the government to have.
And now to take a point out of order...
Alexander Hamilton spent a great deal of energy in Federalist #84 arguing against the inclusion of an explicit bill of rights in the new constitution on the basis that it would be misinterpreted exactly as you've done.
And that's why the people created the 9th Amendment to explicitly state that that's *not* what the Bill of Rights is. It's the catch-all, "just because we didn't think of it doesn't mean that it's not a right" clause.
From your viewpoint, exactly how is the government supposed to have come into possession of the rights that it so magnanimously gives back to its citizens?
The citizens granted those rights to each other. The citizens gave rights to the federal government in the Constitution by accepting the power of the government over them, and the citizens took back rights in the Bill of Rights by barring the government from using its power in certain ways. It is the citizens who define what our rights are. Our rights only exist, just as the government does, with the mandate of the people.
The first 20 pages of the decision, which are all about legal standing, jurisdiction, and overbreadth, made my eyes glaze over. I'm not analyzing those at all except to point out that on most of those issues, the lower court came to exactly the opposite conclusion from that of the Virginia Supreme Court, and there is no reason to think that the higher court is any more likely to be "correct" than the lower court (even granting the assumption that there is an objectively "correct" answer to these questions). Any time you feel intimidated by "experts", it's helpful to step back and ask whether the alleged experts even agree with each other.
Well this quote really gets the article started off with a bang. First of all, the expertise of a trial court and a state supreme court should not be presumed to be equal. A trial court judge could be as fresh as the day is young, but a supreme court justice there has to be elected by the legislature and has to go through a vetting process that favors experience.
This sort of "all experts are equal" attitude confuses issues like global warming, where there are clearly people more knowledgeable about a subject than others, but the public is tricked into believing that "balance" demands we treat anyone with an opinion as equal to anyone else.
Now, there are two possible definitions of "anonymity" to consider: (1) you can be anonymous to the extent that ordinary citizens reading your content cannot determine your identity without a subpoena; or (2) you can be anonymous to the extent that even the government, armed with subpoenas and wiretaps, can never find out who you are.
For purposes of government action against citizens violating the law, the latter is the only one that matters. (Well, that plus what the government can't find out without violating the 4th Amendment.) The former is of little relevance. The courts shouldn't rest all First Amendment protections on whether or not the average person can figure out how you are instead of the bodies entrusted with the duty to enforce the laws against you. Otherwise, anonymity would be meaningless in a legal sense except as an excuse to provide a mirage of privacy for citizens.
But there are even ways to be anonymous in the second sense -- such that not even the government could identify you -- without resorting to forged e-mail headers. You can create Hotmail and Gmail accounts without giving the providers any of your true information.
Courts generally will not favor solutions that revolve around you fraudulently entering into an agreement with email service providers who require you to provide accurate information when signing up and agreeing to their service contracts.
Furthermore, you always have to give an email address for confirmation when signing up for such services, and eventually if you peel back enough layers of registration, the courts can find out an account where you had to give real information to someone (whoever you pay for your initial email account), so this is no guarantee of privacy at all.
In all of these cases, the receiving mail server can see the IP address of the sending machine, so a government subpoena would usually be enough to determine the sender's identity. (I know you all know this, but I have delusions that some helpful clerk will print out this article and explain this to the judge.)
Didn't you just completely defeat this argument by mentioning the use of Tor a few paragraphs above?
Also, while the court is interested in protecting legitimate political or commercial speech (and thus speech not made by illegal activities), most spammers "fake" IP addresses by sending mail from virus hijacked machines, so a government subpoena is useless to find their identity in the case of a real spammer.
It would presumably be unconstitutional for an anti-spam law to prohibit anonymous political e-mails which attempt
I think it's time to go back to law school until you get this part right.
Are you disputing this? Do you have any logical basis for this statement or are you just asserting that I'm wrong without any supporting evidence that might allow one to question your own knowledge? This is how Amendments like the 1st through 5th, 8th, and 9th are viewed, after all.
Okay, congratulations, you've proved you have free Westlaw access, which means you're a student (but shame on your for not having Blue Book-correct cites; I hope you're not on Law Review), and so you deserve a little more respect that J. Random Slashdotter who thinks he knows the law.
Damnation. You're a practicing attorney, aren't you? Alright, I've got to be a little more humble and back up my arguments a little more forcefully. (And I'm not following formal style because this is just an informal internet geek fight. I'll add some links for people who don't have access to services like Westlaw.)
It says "the rest doesn't belong to the Federal government." Sure, you've shown that you favor a more expansive Commerce Clause than I do, but that's orthogonal to my point, which is that the 10th Amendment does, in fact, say something about it ("strong" teeth is your phrase, not mine). You're talking about matters of degree, which are up for reasonable debate. [...] In any case, all constitutional theorists agree that the states have some powers reserved to them (if you can dig up a single remotely credible scholar who says otherwise, I'd like to see it; even Ginsburg will occasionally defer to the autonomy of the states).
I'd agree on the last point. New York v. United States 488 U.S. 1041 (1992) makes clear that Congress can't compel state action through promises of penalties. (See Part B(1) of the majority opinion). The rest of the opinion provides good support for the notion that even if you can't use the stick, you can use the carrot.
For Commerce Clause purposes, Garcia v. San Antonio Metropolitan Transit Authority , 469 U.S. 528 (1985) threw the Tenth Amendment out the window. The court rejected the standard introduced National League of Cities v. Usery, 426 U.S. 833 (1976) which required courts to examine whether a law passed by Congress interfered with "areas of traditional governmental functions."
"Our examination of this 'function' standard applied in these and other cases over the last eight years now persuades us that the attempt to draw the boundaries of state regulatory immunity in terms of "traditional governmental function" is not only unworkable but is also inconsistent with established principles of federalism and, indeed, with those very federalism principles on which National League of Cities purported to rest. That case, accordingly, is overruled."
Garcia at 531.
The problem following Garcia is that they never replaced the Usery standard with anything new! Blackmum explicitly refused to do so: "These cases do not require us to identify or define what affirmative limits the constitutional structure might impose on federal action affecting the States under the Commerce Clause" (Garcia at 556). No case following it has ruled that an exercise of Commerce Clause power violated the Tenth Amendment. Looking back to what preceded Usery, all we have is post-Lochner caselaw that treats the 10th Amendment as a mere truism.
For example, take the following frequently cited quote from United States v. Darby Lumber Co. , 312 U.S. 100 (1941) (which overturned prior precedent that gave effect to the 10th Amendment):
"The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay
You're not going after the 'general Welfare as an enumerated power' angle, are you?
The "Taxing and Spending Clause," "Spending Clause," and "General Welfare Clause" all refer to the same text (just different parts of it):
Article 1, Section 8, Clause 1:
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"
Court cases have consistently found no limitation on what Congress can spend your tax dollars on since United States v. Butler. That clause gives Congress the ability to spend tax dollars to purchase toxic assets from the financial industry.
We may not like how they're exercising that power, but there's absolutely no question that they have it to anyone who's studied Supreme Court precedent on the matter.