It's not really the 10th amendment that is going to govern this issue. This issue will be governed under the commerce clause of the constitution. This means Congress will get to do it. Right now, legal scholars have a great debate going on concerning the commerce clause. The SCOTUS has defined it so broadly that just about anything that Congress wants to do it can in the name of interstate commerce. Healthcare is something that affects commerce across the states. That means Congress has a very broad discretion to meddle into it. This legacy comes down from the reinterpretation of both the general welfare clause and the interstate commerce clause that occurred in the same era as New Deal legislation.
In Modern times, the 10th amendment is (normally) only violated when Congress attempts to commandeer a legislative or other process of the states. An example is the old laws where: Congress provides that each state must arrange for toxic waste disposal of waste generated within its borders. Congress requires the state to "take title" of the waste if it fails to comply and thus become liable for tort damages stemming from it. (New York v. United States) Congress can't compel state legislatures to enforce federal policy under the 10th amendment.
Another example is administrative offices: Congress can not compel a state's sheriff's to perform background checks on applicants for handgun permits. (Printz v. US) Congress can make it illegal and enforce it with federal agencies, but they can not force a state agency to do anything specifically to enforce federal policy.
As for the commerce clause, generally, Congress may enact laws that cover four broad categories:
1. The Channels of interstate commerce: This covers the regulation of highways, waterways, and air traffic. 2. The instrumentalities of commerce: This refers to people and machines (trains and semi trucks) used in carrying out commerce. 3. Articles moving in interstate commerce: The goods themselves crossing state lines etc.
And finally the big catch all that gives them so much power:
4. Anything "substantially affecting" commerce: So long as the activity is "arguably commercial" then it doesn't matter if the particular activity itself directly affects interstate commerce so long as it is part of a general class of activities that, collectively, substantially affect interstate commerce.
Medical insurance falls into category 4. You can't buy insurance over state lines. That means that most "particular instances" of insurance are not interstate commerce. However, taken collectively, insurance has a substantial affect on commerce when you look at it countrywide. Now, you can see all kinds of examples where this will make Congress have an almost unlimited right to legislate. So many things, when taken in the aggregate, fit this definition. Legal scholars are still wondering what exactly can Congress -not- do? Only a few recent cases have put any real limits on it. It's sad, but we are now seriously waiting to not find out if Congress -can- do a thing.... We're asking "is this one of the rare instances where they -can't- do it?"
It's messed up, but that's the current state of constitutional law.
Indeed. That's is why I said I take no qualms with anything else. There actually is a constitutional right to movement. Other than that.. I agree with you.
I think you are also confused. There is a constitutional right to movement. Read Crandall v. Nevada.. In modern Constitutional law theory this would fall under substantive rights protected under the 5th and 14th amendments. They are rights "implicit in the concept of ordered liberty." For an overview of some of these legal theories see: Palko v. Connecticut. They had their most recent iterations by the court in Roe v. Wade, Planned Parenthood v. Casey, and Raich v. Gonzalez.
The right of movement is required in order to allow for free persons to participate in government. You have to be able to get to D.C. sometimes to petition for grievances.. (million man march anyone?). Perhaps before you go about with derogatory terms like "homeslice" and then name a specific freedom that is constitutionally protected by fundamental process and claim it isn't "a constitutional right" you should at least perform a cursory study in the jurisprudence of fundamental due process.
However, I have no qualms about the rest of what you said. Criminal Procedure jurisprudence is indeed designed for people under suspicion but not yet proven guilty.
The Constitution specifies, among other protected rights, that we cannot be slaves - prohibiting not just the government from owning slaves.
That's actually incorrect. There is an amendment prohibiting a "person" from owning another "person" and we also fought a war over this premise. However, it is elgal for the government to own a person. Just ask any of the many military personnel in the US who were courts martialed and/or received nonjudicial punishment for "willful destruction of government property" when their reckless behavior resulted in an injury. These cases are for as little as getting a severe sunburn from falling asleep on the beach that results in missing work.
Is it against the spirit of the constitution? Absolutely.. Is it the current state of the law? Absolutely not. It always amazes me how many people don't realize that the government can own people. I'm just glad no corporation has stretched the rational to try to own a person. The governments argument is that the war and the amendment forbid "people" not the government from ownership.
It may be true that there is no crime of attempted copyright infringement. That is NOT what you were proposing however.
You said:
Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.
That is not correct. Attempting to break a law is a crime when the legislature places it as a crime. Sometimes a legislature determines that only certain crimes can be attempted. And yes, criminal copyright infringement may not be covered. I don't know because I have not studied the case law or the statute. However, your generalized statement is incorrect. Some states don't even require that a specific crime's attempt be codified. There are several states with general conspiracy and general attempt statutes that state that ANY thing in the criminal code may be the object of a conspiracy or an attempt. I do not agree with your generalized statement that "Even attempting to break the law is not a crime." This is false. I hope this clarification helps you understand what I disagreed with.
Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.
That is actually not correct. There are several attempt crimes. An attempt occurs when someone makes an overt act that takes their involvement beyond mere preparation to commit a crime. I agree with your the burden is on the accuser part. However, one of the tests for attempt is the essential element test. This says that if at any time every element that is essential to the commission of a crime is present, then the crime of attempt has occurred. Let us reference another of your sentences:
You say he admits to doing everything he needed to do to have commit copyright infringement... if that's the case, then he did commit and he's guilty.
Certainly looks like you agree he performed every essential element. That's an attempt. It is a crime if the federal code allows for an attempt crime for infringement, but that's not committing infringement unless he infringed.
This has nothing to do with conspiracy. This is a law against omissions. Normally you have no duty to act to save anyone or prevent any crime except under some very explicit exceptions. This law creates a legal duty to act. You don't have the right of omission anymore. You must at least report it ot the police. Minnesota has a similar statute. It requires that you must aid someone when their life is in danger. This aid must at least consist of contacting the authorities or you have committed a misdemeanor. I think it is even a gross misdemeanor. The law that you are referring to is of this category.
First you must understand what a conspiracy is. A conspiracy is generally an agreement with the intent to further a crime. If someone just placed an mp3 up in a place where it could be downloaded then it is still not conspiracy unless you can show there is an agreement. Generally, there must be at least more than one person for there to be a conspiracy. There must be some agreement, though in some jurisdictions it can be a feigned agreemnt ergo a cop agreeing to do a crime with a criminal while actually lacking a true intent, and thus conspiracy is not done in this fashion.
Historically, at the common law, a conspiracy didn't even have to be a crime. Conspiracy could be for anything immoral. In most modern jurisdictions this is rejected and you still have to have a crime.
I think the crime you are looking for is attempt. This may be attempted copyright infringement because he has gone beyond mere preparation for a crime and performed the last act necessary for it. There are many tests to determine attempt, but actually making it available could be construed as the same thing as an attempted infringement. Now, whether attempted infringement is a crime or not I can't speak to.
I can't speak for the Army or the Marines, but the Air Force mines dropped from cluster munitions all have timers on them. The anti personnel mines for the GATOR mines and others have a timer on them that you can select hours to upto 48 hours before they detonate on their own. I don't know if normal, as in the buried into the ground and not dropped from a plane variety, mines have this timing mechanism, but the mines that are released from our cluster munitions do. I still don't agree with even using the timed mines in an urban environment. There is no telling who will go through that area at what time. There is also the chance that the timing mechanism will malfunction, but this is quite rare.
Slashdot Mirror
It's not really the 10th amendment that is going to govern this issue. This issue will be governed under the commerce clause of the constitution. This means Congress will get to do it. Right now, legal scholars have a great debate going on concerning the commerce clause. The SCOTUS has defined it so broadly that just about anything that Congress wants to do it can in the name of interstate commerce. Healthcare is something that affects commerce across the states. That means Congress has a very broad discretion to meddle into it. This legacy comes down from the reinterpretation of both the general welfare clause and the interstate commerce clause that occurred in the same era as New Deal legislation.
In Modern times, the 10th amendment is (normally) only violated when Congress attempts to commandeer a legislative or other process of the states. An example is the old laws where: Congress provides that each state must arrange for toxic waste disposal of waste generated within its borders. Congress requires the state to "take title" of the waste if it fails to comply and thus become liable for tort damages stemming from it. (New York v. United States) Congress can't compel state legislatures to enforce federal policy under the 10th amendment.
Another example is administrative offices: Congress can not compel a state's sheriff's to perform background checks on applicants for handgun permits. (Printz v. US) Congress can make it illegal and enforce it with federal agencies, but they can not force a state agency to do anything specifically to enforce federal policy.
As for the commerce clause, generally, Congress may enact laws that cover four broad categories:
1. The Channels of interstate commerce: This covers the regulation of highways, waterways, and air traffic.
2. The instrumentalities of commerce: This refers to people and machines (trains and semi trucks) used in carrying out commerce.
3. Articles moving in interstate commerce: The goods themselves crossing state lines etc.
And finally the big catch all that gives them so much power:
4. Anything "substantially affecting" commerce: So long as the activity is "arguably commercial" then it doesn't matter if the particular activity itself directly affects interstate commerce so long as it is part of a general class of activities that, collectively, substantially affect interstate commerce.
Medical insurance falls into category 4. You can't buy insurance over state lines. That means that most "particular instances" of insurance are not interstate commerce. However, taken collectively, insurance has a substantial affect on commerce when you look at it countrywide. Now, you can see all kinds of examples where this will make Congress have an almost unlimited right to legislate. So many things, when taken in the aggregate, fit this definition. Legal scholars are still wondering what exactly can Congress -not- do? Only a few recent cases have put any real limits on it. It's sad, but we are now seriously waiting to not find out if Congress -can- do a thing.... We're asking "is this one of the rare instances where they -can't- do it?"
It's messed up, but that's the current state of constitutional law.
Indeed. That's is why I said I take no qualms with anything else. There actually is a constitutional right to movement. Other than that.. I agree with you.
I think you are also confused. There is a constitutional right to movement. Read Crandall v. Nevada.. In modern Constitutional law theory this would fall under substantive rights protected under the 5th and 14th amendments. They are rights "implicit in the concept of ordered liberty." For an overview of some of these legal theories see: Palko v. Connecticut. They had their most recent iterations by the court in Roe v. Wade, Planned Parenthood v. Casey, and Raich v. Gonzalez. The right of movement is required in order to allow for free persons to participate in government. You have to be able to get to D.C. sometimes to petition for grievances.. (million man march anyone?). Perhaps before you go about with derogatory terms like "homeslice" and then name a specific freedom that is constitutionally protected by fundamental process and claim it isn't "a constitutional right" you should at least perform a cursory study in the jurisprudence of fundamental due process. However, I have no qualms about the rest of what you said. Criminal Procedure jurisprudence is indeed designed for people under suspicion but not yet proven guilty.
That's actually incorrect. There is an amendment prohibiting a "person" from owning another "person" and we also fought a war over this premise. However, it is elgal for the government to own a person. Just ask any of the many military personnel in the US who were courts martialed and/or received nonjudicial punishment for "willful destruction of government property" when their reckless behavior resulted in an injury. These cases are for as little as getting a severe sunburn from falling asleep on the beach that results in missing work. Is it against the spirit of the constitution? Absolutely.. Is it the current state of the law? Absolutely not. It always amazes me how many people don't realize that the government can own people. I'm just glad no corporation has stretched the rational to try to own a person. The governments argument is that the war and the amendment forbid "people" not the government from ownership.
I've also heard that it is silent too!
It may be true that there is no crime of attempted copyright infringement. That is NOT what you were proposing however.
You said:
Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.
That is not correct. Attempting to break a law is a crime when the legislature places it as a crime. Sometimes a legislature determines that only certain crimes can be attempted. And yes, criminal copyright infringement may not be covered. I don't know because I have not studied the case law or the statute. However, your generalized statement is incorrect. Some states don't even require that a specific crime's attempt be codified. There are several states with general conspiracy and general attempt statutes that state that ANY thing in the criminal code may be the object of a conspiracy or an attempt. I do not agree with your generalized statement that "Even attempting to break the law is not a crime." This is false. I hope this clarification helps you understand what I disagreed with.
Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.
That is actually not correct. There are several attempt crimes. An attempt occurs when someone makes an overt act that takes their involvement beyond mere preparation to commit a crime. I agree with your the burden is on the accuser part. However, one of the tests for attempt is the essential element test. This says that if at any time every element that is essential to the commission of a crime is present, then the crime of attempt has occurred. Let us reference another of your sentences:
You say he admits to doing everything he needed to do to have commit copyright infringement... if that's the case, then he did commit and he's guilty.
Certainly looks like you agree he performed every essential element. That's an attempt. It is a crime if the federal code allows for an attempt crime for infringement, but that's not committing infringement unless he infringed.
This has nothing to do with conspiracy. This is a law against omissions. Normally you have no duty to act to save anyone or prevent any crime except under some very explicit exceptions. This law creates a legal duty to act. You don't have the right of omission anymore. You must at least report it ot the police. Minnesota has a similar statute. It requires that you must aid someone when their life is in danger. This aid must at least consist of contacting the authorities or you have committed a misdemeanor. I think it is even a gross misdemeanor. The law that you are referring to is of this category.
First you must understand what a conspiracy is. A conspiracy is generally an agreement with the intent to further a crime. If someone just placed an mp3 up in a place where it could be downloaded then it is still not conspiracy unless you can show there is an agreement. Generally, there must be at least more than one person for there to be a conspiracy. There must be some agreement, though in some jurisdictions it can be a feigned agreemnt ergo a cop agreeing to do a crime with a criminal while actually lacking a true intent, and thus conspiracy is not done in this fashion.
Historically, at the common law, a conspiracy didn't even have to be a crime. Conspiracy could be for anything immoral. In most modern jurisdictions this is rejected and you still have to have a crime.
I think the crime you are looking for is attempt. This may be attempted copyright infringement because he has gone beyond mere preparation for a crime and performed the last act necessary for it. There are many tests to determine attempt, but actually making it available could be construed as the same thing as an attempted infringement. Now, whether attempted infringement is a crime or not I can't speak to.
I can't speak for the Army or the Marines, but the Air Force mines dropped from cluster munitions all have timers on them. The anti personnel mines for the GATOR mines and others have a timer on them that you can select hours to upto 48 hours before they detonate on their own. I don't know if normal, as in the buried into the ground and not dropped from a plane variety, mines have this timing mechanism, but the mines that are released from our cluster munitions do. I still don't agree with even using the timed mines in an urban environment. There is no telling who will go through that area at what time. There is also the chance that the timing mechanism will malfunction, but this is quite rare.