I didn't suggest that the concept of privacy or the desire for it was invented in the 60s. What I believe was invented in the 60s was the idea that information existing within an "expectation of privacy" was automatically excluded from criminal investigators without court intervention.
The Act of Congress which extended the jurisdiction of the Supreme Court to include writs of mandamus was declared unconstitutional. This only means that the method in which the case was brought before the court was deemed illegal. Marbury v. Madison says nothing about denying the Supreme Court's authority to holding the Executive Branch accountable to the rule of law.
Marbury v. Madison determined that Congress could not give the Court the power to issue writs of mandamus, because the Court's constitutional jurisdiction excludes the power of issuing writs of mandamus. The power of issuing writs of mandamus is the power to order a public officer to perform his duty as required by statute. So yes, this was exactly what Marbury v. Madison was about.
because it's discovery for criminal processes run by another EXECUTIVE agency. The "executive" branch is not just the President anymore like when that was tried. This is executive officers conducting investigation under the power of law against another department, so this is "normal" proceedings, and preservation of evidence... unless the White House wants to say they have power to destroy criminal evidence now!
1) The executive branch wasn't just the president during Marbury v. Madison. In fact the case was about the attempt to get the court to order President Jefferson's Secretary of State, James Madison, to do what statute required him to do. 2) At current issue is two lawsuits seeking to make the executive branch follow the PRA statute. There are no criminal cases for which the emails are being alleged to be evidence.
You are deeply confused. In that case the Supreme Court ruled that they did have the power issue such orders to the executive branch and its officers when the order respected actions specified by law. They ruled that they do not have such power when the actions are merely those actions dictated to the officers by the President and are not dictated by law.
You have it backwards. At issue was a writ of mandamus, which is an order to an officer to execute his duty as required by statute. James Madison was statutorily required to deliver a commission to Marbury, and the court scolded him for not doing it. But it correctly concluded that it did not have the jurisdiction to order him to do it, and the commission was never delivered.
It is generally accepted that, as a foundation of democracy, government transparency is essential. It is to this end, and for historical posterity, that records of communications within the White House (and Congress, and the Supreme Court) are preserved. The Presidential Records Act has been around for nearly three decades, and it has yet to be overturned on constitutional grounds.
Government transparency and preservation of historical fact are both vital concerns. But privacy of deliberations within the executive office, equally vital. None of these three things can be sacrificed in favor of the others. Saying that the PRA has not been overturned on constitutional grounds is not entirely true, unless you mean specifically that the Supreme Court hasn't voided it on constitutional grounds. The PRA has been at least partially overturned on constitutional grounds by Executive Order 13233.
As another clarification: the subversion that people (not just Democrats, and not just in the U.S.) accuse Bush of tends towards greater government secrecy and curtailing civil liberties. The subversion people accused Congress of in the wake of Nixon is towards greater government transparency and a weakened Executive. Each citizen must make their own judgement as to which is the greater subversion.
Curtailing civil liberties? Was there an executive order I missed that prevents Muslims from voting? The "subversion" that Bush is accused of is asserting the power of the executive to do specifically what the Constitution tasks it with: to protect the United States by waging war on its enemies. In contrast, the usurpation of executive power and into the legislative branch, (or, as we have also seen, usurpation of legislative power into the judicial branch) is the ULTIMATE subversion of the constitution. The republic is only worth ANYTHING as long as the constitutional balance between the three branches of government is preserved. The founding fathers, educated by history, were equally scared of a tyrannical legislature as a tyrannical executive. Reasserting the power of the executive is something that those who love the Constitution have been campaigning for vigorously ever since their attack following Watergate. GWB will be remembered by history as the president who restored the balance.
The Congress doesn't have the power by itself. But the Congress passing a Bill which the President signs into law can and does make the determination. The Federal Judge is merely ordering the White House to uphold the law which the Executive Branch is Constitutionally mandated to do.
That is exactly what a writ of mandamus is -- a court order compelling a public official to carry out a duty as required by statue. In Marbury v. Madison, the Supreme Court determined that their jurisdiction, as defined in the Constitution, EXCLUDED the power to issue writs of mandamus to public officers.
I think the first, most obvious question would be, by what Constitutional power can Congress determine the manner in which the President keeps (or doesn't keep) his records? Just as Democrats accuse Bush of using 9/11 as an excuse to subvert the Constitution, the Democrats have used Nixon as an excuse to subvert the Constitution.
By what authority can the courts order the executive branch to not delete any emails? In Marbury v. Madison, the Supreme Court unanimously decided that it did not have, and under the Constitution could not be given, the power to issue such orders to the executive branch.
That's fine if it's your opinion, but thankfully it does not seem to have been shared by many of the Supreme Court justices in the last half-century.
Any rights given to you by the opinions of the justices of the Supreme Court can be taken away from you by the opinions of the justices of the Supreme Court. That is the difference between the rule of men and the rule of law. Why anyone would advocate for the former system is beyond me. The founding fathers were quite clear that they preferred the latter.
Your very literal use of the word "papers" is, IMO, sillier than the expansionist view you seem to abhor. Plus, the Constitution says nothing about said papers being under your direct personal control; you have a right to be secure in the knowledge that the government will not intrude on them, even if they are in, say, a bank's safe deposit box. That's no different from electronic "papers" stored on a remote server.
I didn't claim that "papers" excluded electronic media. The point is that the security discussed in the 4th amendment is security against those papers being disturbed or taken, not security against them being seen, or against the information contained in the papers from being known. So yes, if the government forcibly enters your house, takes your laptop, or interrupts your business, to read your email, that is a clear violation of the 4th amendment. If it is read without disturbing anyone or anything, such action is not at odds with any reasonable interpretation of the 4th amendment.
And while the town constable could perhaps peek over your shoulder if you were reading documents in a pub, he certainly could not conceal himself in your house or other private place (or peep through a window), in order to do so: the key difference between your home and a pub being the implicit assumption of privacy.
The whole idea of "expectation of privacy" is purely an invention of the supreme court from the 1960s. It is in no way implied by the 4th amendment.
Furthermore, there is nothing to suggest that "persons, houses, papers, and effects" was meant to be an exclusive list; it reads to me as though it was specifically mean to be broad: that list encompasses practically everything of a possibly private nature that an 18th century man might possess. There is no reason to assume that the intent was limited only to "physical searches or seizures," when that was the only type of search or seizure that existed at the time of writing. The document was as broad as possible at the time it was written; you do a disservice to it with your pedantry.
I agree that the list of objects, "persons, houses, papers, and effects" is intended to be broad. The question is strictly about what kinds of actions are being prohibited, not the kinds of objects upon which the actions are being performed.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Specifically papers and unreasonable searches means the government does not get to look at my private documents without a warrant. Back when this amendment was written, if the government wanted to snoop on your documents, it would have to look at your papers, and this amendment would force them to get a warrant. Nowadays most of our documents are electronic, and we transmit them about over networks. Clearly, had the authors of the 4th amendment been alive today they would include "snooping on your email" as "unreasonable searches of your papers".
That's not what the language means. To be "secure in their persons, houses, papers, and effects" means there are limits to the conditions under which the local constable can rifle through your papers and take whatever he's interested in. It does not mean he can't look over your shoulder if you're reading your papers in the local pub, peeking in the window of your home, or consulting a psychic to tell them what is contained in your papers. The amendment does not protect information or prevent spying. It protects people's lives from being unduly interfered with by physical searches or seizures of their property.
It has NOTHING to do with Google. If the government wants to change what privacy means to THEM, they need a constitutional amendment. Unless they simply want to continue to trample the document, which I wouldn't doubt for a moment.
That would only be the case if the Constitution defined privacy. As it stands, the Constitution doesn't even MENTION privacy.
Whether privacy should be considered an unalienable right is a worthy topic of discussion. However, as far as I can tell the concept of the right to privacy didn't exist prior to the 20th century. Saying that the right should be respected because it is in the Constitution, when it isn't, is a silly argument, and undermines the legitimate arguments for it. (And just because the Supreme Court does something silly doesn't mean it is no longer silly.)
The clear purpose of the 4th Amendment is to protect citizens against physical and disruptive intrusions into their homes and possessions. It does not exist to explicitly safeguard information from the government. It was neither written nor ratified under any semblance of that meaning. To intentionally interpret the Constitution in a way that is alien to both the words themselves, and to the understanding of both the writers and ratifiers, is blatantly anti-democratic.
We know that modern creators often include Easter Eggs in their products, everything from hidden bits of programming to images etched into the silicone hardware. Why do so many of slashdot readers find it impossible to accept that Leonardo might have done the same in his work?
An Easter Egg is an entirely different concept. If he had hidden a microscopic musical score in some obscure corner of the masterpiece, that would be an Easter Egg. And once it was found, it would be obvious that it existed. This is nothing but the invention of an algorithm to turn the entire painting into a musical score; along with the absurd claim that Leonardo painted the masterpiece with the intention of encoding the resulting musical score.
First of all, the key is arbitrary, since Pala arbitrarily superimposed a 5-line staff over the paining. There is no reason for the staff to be where he put it rather than any number of steps in either direction. Secondly, in Leonardo's time, there was no 5-line standard staff. There were many competing musical notations. Adopting the modern notation for Leonardo's supposed intention is lazy at best. If we're going to do that, I'd say that the hand pointing upward to the right of Jesus, must be indicating an upward bent note, meaning that Leonardo's score is obviously written for electric guitar.
That you can take any visual proportions that are meaningful to the eye and turn them into aural proportions that would be meaningful to the ear should be obvious. It certainly would have been to Leonardo, who wrote:
Painting, the servant of the eye, that noblest of the senses, reveals a harmonious proportion similar to the harmonious proportion which results from many voices uniting and singing together, in such a delightful manner that the audience is rapt in intense admiration......Do you not know that our soul is composed of harmony, and that harmony cannot be bred save in the simultaneity and the relative proportions of objects which are seen or heard? However, since Leonard considered the visual arts superior to the aural arts, it is pretty absurd to think that he let a musical composition dictate the visual proportions of the objects in his arguably greatest painting.
And this is exactly why the writers are now on strike. They get nothing from the distribution online while the broadcasting companies gets all the income generated from ads, etc. But even worst: they get nothing from the distribution on DVD in some cases.
So? If a company finds a new way to make more money from some program I wrote for them, I say hurray for them. I don't cry or go on strike.
You just have to look at our own history of contact between various cultures to figure that out.
While historical invasions and conquest are the more interesting phenomena, and so they stand out more, by far the most common result of contact between alien civilizations is the establishment of trade that benefits both sides.
Impeaching him for Iraq and Iran is off the mark. He should be impeached for:
A. single handedly pushing authorization for torture which was done entirely by his office and his aides B. single handedly pushing authorization of illegal spying on American citizens without a warrant also lead out of his office
Those are both slam dunk grounds for impeachment because they are both clearly illegal, unpopular, unnecessary and were just plain stupid.
Ha! a) The Vice President doesn't "single-handedly" do anything, whatever the point of saying that was. He has an entire office and staff . b) "Pushing" for legalizing a particular interrogation technique, or pushing the argument that FISA is unconstitutional, by definition, cannot be legal. The idea is preposterous. It is the function of all elected officials to "push" for legislation that they think is beneficial, and to attempt to faithfully interpret and follow the Constitution. They take an oath to do it.
Your reasoning breaks down to "he did things that are clearly unpopular and therefore clearly illegal." Fortunately, that's not how the law works. Your thinking will improve if you spend less time on the Daily KOS.
Try the age range of 12 to 15 (Secondary School, Year 7 to 9, in Australia). A family-friend in Year 9 told her Mum that they don't like it when he's around them (he always volunteers to do things like Year 7/8 Swimming Sports), and when Mum spoke to her Mum and told her the name of the person I mentioned, she was like "Oh my, that's the name of the teacher my daughter is uncomfortable with..".
Girls are blessed with built-in creep-o-meters, which tend to get it right. If he's going as far as volunteering for swim meets to leer at the girls, I'd say he needs to be fired, even if that's the worst thing he's done yet.
Of course, from his point of view, whether what you said about him is true or false, the public nature of it has the potential of devastating effects on his career and/or marriage. So if he's out for retribution, it's not surprising.
On the upside, there's always a chance that some good will come out of this, and that the chain of events that follows will end up preventing some future adolescent girl from getting assaulted by this guy. As a believer in providence, I tend to think it's most likely your lapse in judgment was allowed to play out for a reason.
I am unfamiliar with the term Pederast (this is, in fact, the first time I have heard it)
Which means that you've never seen The Big Lebowski... what is happening to the state of education on this planet???
Walter: No, he's a sex offender. With a record. He served 6 months in Chino for exposing himself to an eight year old. The Dude: Oh! Walter: When he moved to Hollywood he had to go door to door to tell everyone he was a pederast. Donny: What's a... pederast, Walter? Walter: Shut the fuck up, Donny.
Frankly, posting anything about government officials, other than death threats or personal information, should not be discouraged. If the public cannot voice their disagreements with local officials then we are no longer free.
We're not talking about disagreements. We're talking about unprovable defamatory accusations. Why should people be allowed (in fact, not even be "discouraged") from making up false accusations against government officials. What public good does that serve? The public harm is obvious.
A school district doesn't have any governmental responsibilities. It has educational responsibilities, precisely the same as a private school has. A public school is not the government. It is a school. Receiving money from the government doesn't make one the government. If it did, then individuals on welfare would loose their status as individuals.
That the Plaintiff doesn't have to prove that there is no possible way the statement is true doesn't mean the plaintiff doesn't have the burden of proof.
If the plaintiff proves that the defendants statements were public and defamatory, the defendant has to prove that the statements are factual. If there is no proof either way of the factuality of the statements, the defendant looses.
The ACLU sometimes fights the good fight. But I think the harm they do to liberties, especially the liberty to run a public school and for the community to teach its children as they see fit, far outweighs the good.
What sentencing guidelines do is move the judiciary power into the federal power, and as a result, you have a race to ever more ridiculous sentences for political reasons. What we really need is to have judges doing the sentencing based on the facts of the case and the real severity of the crime, not a congress in a race to imprison people to seem tough on crime.
Er, the federal judiciary IS a federal power. I assume you meant moving judiciary power into legislative control. But the whole purpose of the judiciary is to apply the legislatively created -- politically created -- rules, sometimes including sentencing requirements, to particular cases. You can't sentence someone purely based on the facts. Facts don't imply a punishment. Facts + a system of punishments implies a punishment. Actually, the part of the legislature is very small in terms of determining sentences. The legislature usually only establishes statutory maximums for laws, and sometimes statutory minimums. The guidelines for how to apply discretion in sentencing are the Federal Sentencing Guidelines, which are determined by the US Sentencing Commission, which is an independent body of the judicial branch.
Prosecute them? How exactly have the Left-wingers actually managed to convince one another that not toeing the Democratic party line is a punishable crime? This is a powerful demonstration of that fact that if a lie is repeated enough ends up as the truth.
Slashdot Mirror
I didn't suggest that the concept of privacy or the desire for it was invented in the 60s. What I believe was invented in the 60s was the idea that information existing within an "expectation of privacy" was automatically excluded from criminal investigators without court intervention.
Marbury v. Madison determined that Congress could not give the Court the power to issue writs of mandamus, because the Court's constitutional jurisdiction excludes the power of issuing writs of mandamus. The power of issuing writs of mandamus is the power to order a public officer to perform his duty as required by statute. So yes, this was exactly what Marbury v. Madison was about.
1) The executive branch wasn't just the president during Marbury v. Madison. In fact the case was about the attempt to get the court to order President Jefferson's Secretary of State, James Madison, to do what statute required him to do.
2) At current issue is two lawsuits seeking to make the executive branch follow the PRA statute. There are no criminal cases for which the emails are being alleged to be evidence.
You have it backwards. At issue was a writ of mandamus, which is an order to an officer to execute his duty as required by statute. James Madison was statutorily required to deliver a commission to Marbury, and the court scolded him for not doing it. But it correctly concluded that it did not have the jurisdiction to order him to do it, and the commission was never delivered.
Government transparency and preservation of historical fact are both vital concerns. But privacy of deliberations within the executive office, equally vital. None of these three things can be sacrificed in favor of the others. Saying that the PRA has not been overturned on constitutional grounds is not entirely true, unless you mean specifically that the Supreme Court hasn't voided it on constitutional grounds. The PRA has been at least partially overturned on constitutional grounds by Executive Order 13233.
Curtailing civil liberties? Was there an executive order I missed that prevents Muslims from voting? The "subversion" that Bush is accused of is asserting the power of the executive to do specifically what the Constitution tasks it with: to protect the United States by waging war on its enemies. In contrast, the usurpation of executive power and into the legislative branch, (or, as we have also seen, usurpation of legislative power into the judicial branch) is the ULTIMATE subversion of the constitution. The republic is only worth ANYTHING as long as the constitutional balance between the three branches of government is preserved. The founding fathers, educated by history, were equally scared of a tyrannical legislature as a tyrannical executive. Reasserting the power of the executive is something that those who love the Constitution have been campaigning for vigorously ever since their attack following Watergate. GWB will be remembered by history as the president who restored the balance.
That is exactly what a writ of mandamus is -- a court order compelling a public official to carry out a duty as required by statue. In Marbury v. Madison, the Supreme Court determined that their jurisdiction, as defined in the Constitution, EXCLUDED the power to issue writs of mandamus to public officers.
I think the first, most obvious question would be, by what Constitutional power can Congress determine the manner in which the President keeps (or doesn't keep) his records? Just as Democrats accuse Bush of using 9/11 as an excuse to subvert the Constitution, the Democrats have used Nixon as an excuse to subvert the Constitution.
By what authority can the courts order the executive branch to not delete any emails? In Marbury v. Madison, the Supreme Court unanimously decided that it did not have, and under the Constitution could not be given, the power to issue such orders to the executive branch.
Any rights given to you by the opinions of the justices of the Supreme Court can be taken away from you by the opinions of the justices of the Supreme Court. That is the difference between the rule of men and the rule of law. Why anyone would advocate for the former system is beyond me. The founding fathers were quite clear that they preferred the latter.
I didn't claim that "papers" excluded electronic media. The point is that the security discussed in the 4th amendment is security against those papers being disturbed or taken, not security against them being seen, or against the information contained in the papers from being known. So yes, if the government forcibly enters your house, takes your laptop, or interrupts your business, to read your email, that is a clear violation of the 4th amendment. If it is read without disturbing anyone or anything, such action is not at odds with any reasonable interpretation of the 4th amendment.
The whole idea of "expectation of privacy" is purely an invention of the supreme court from the 1960s. It is in no way implied by the 4th amendment.
I agree that the list of objects, "persons, houses, papers, and effects" is intended to be broad. The question is strictly about what kinds of actions are being prohibited, not the kinds of objects upon which the actions are being performed.
That's not what the language means. To be "secure in their persons, houses, papers, and effects" means there are limits to the conditions under which the local constable can rifle through your papers and take whatever he's interested in. It does not mean he can't look over your shoulder if you're reading your papers in the local pub, peeking in the window of your home, or consulting a psychic to tell them what is contained in your papers. The amendment does not protect information or prevent spying. It protects people's lives from being unduly interfered with by physical searches or seizures of their property.
That would only be the case if the Constitution defined privacy. As it stands, the Constitution doesn't even MENTION privacy.
Whether privacy should be considered an unalienable right is a worthy topic of discussion. However, as far as I can tell the concept of the right to privacy didn't exist prior to the 20th century. Saying that the right should be respected because it is in the Constitution, when it isn't, is a silly argument, and undermines the legitimate arguments for it. (And just because the Supreme Court does something silly doesn't mean it is no longer silly.)
The clear purpose of the 4th Amendment is to protect citizens against physical and disruptive intrusions into their homes and possessions. It does not exist to explicitly safeguard information from the government. It was neither written nor ratified under any semblance of that meaning. To intentionally interpret the Constitution in a way that is alien to both the words themselves, and to the understanding of both the writers and ratifiers, is blatantly anti-democratic.
An Easter Egg is an entirely different concept. If he had hidden a microscopic musical score in some obscure corner of the masterpiece, that would be an Easter Egg. And once it was found, it would be obvious that it existed. This is nothing but the invention of an algorithm to turn the entire painting into a musical score; along with the absurd claim that Leonardo painted the masterpiece with the intention of encoding the resulting musical score.
That you can take any visual proportions that are meaningful to the eye and turn them into aural proportions that would be meaningful to the ear should be obvious. It certainly would have been to Leonardo, who wrote: Painting, the servant of the eye, that noblest of the senses, reveals a harmonious proportion similar to the harmonious proportion which results from many voices uniting and singing together, in such a delightful manner that the audience is rapt in intense admiration...
So? If a company finds a new way to make more money from some program I wrote for them, I say hurray for them. I don't cry or go on strike.
While historical invasions and conquest are the more interesting phenomena, and so they stand out more, by far the most common result of contact between alien civilizations is the establishment of trade that benefits both sides.
Ha! a) The Vice President doesn't "single-handedly" do anything, whatever the point of saying that was. He has an entire office and staff . b) "Pushing" for legalizing a particular interrogation technique, or pushing the argument that FISA is unconstitutional, by definition, cannot be legal. The idea is preposterous. It is the function of all elected officials to "push" for legislation that they think is beneficial, and to attempt to faithfully interpret and follow the Constitution. They take an oath to do it.
Your reasoning breaks down to "he did things that are clearly unpopular and therefore clearly illegal." Fortunately, that's not how the law works. Your thinking will improve if you spend less time on the Daily KOS.
Girls are blessed with built-in creep-o-meters, which tend to get it right. If he's going as far as volunteering for swim meets to leer at the girls, I'd say he needs to be fired, even if that's the worst thing he's done yet.
Of course, from his point of view, whether what you said about him is true or false, the public nature of it has the potential of devastating effects on his career and/or marriage. So if he's out for retribution, it's not surprising.
On the upside, there's always a chance that some good will come out of this, and that the chain of events that follows will end up preventing some future adolescent girl from getting assaulted by this guy. As a believer in providence, I tend to think it's most likely your lapse in judgment was allowed to play out for a reason.
Which means that you've never seen The Big Lebowski... what is happening to the state of education on this planet???
We're not talking about disagreements. We're talking about unprovable defamatory accusations. Why should people be allowed (in fact, not even be "discouraged") from making up false accusations against government officials. What public good does that serve? The public harm is obvious.
A school district doesn't have any governmental responsibilities. It has educational responsibilities, precisely the same as a private school has. A public school is not the government. It is a school. Receiving money from the government doesn't make one the government. If it did, then individuals on welfare would loose their status as individuals.
If the plaintiff proves that the defendants statements were public and defamatory, the defendant has to prove that the statements are factual. If there is no proof either way of the factuality of the statements, the defendant looses.
The ACLU sometimes fights the good fight. But I think the harm they do to liberties, especially the liberty to run a public school and for the community to teach its children as they see fit, far outweighs the good.
Er, the federal judiciary IS a federal power. I assume you meant moving judiciary power into legislative control. But the whole purpose of the judiciary is to apply the legislatively created -- politically created -- rules, sometimes including sentencing requirements, to particular cases. You can't sentence someone purely based on the facts. Facts don't imply a punishment. Facts + a system of punishments implies a punishment. Actually, the part of the legislature is very small in terms of determining sentences. The legislature usually only establishes statutory maximums for laws, and sometimes statutory minimums. The guidelines for how to apply discretion in sentencing are the Federal Sentencing Guidelines, which are determined by the US Sentencing Commission, which is an independent body of the judicial branch.
Or how about you are sentenced to prison until such time as you are able to hack into the DOJ computers to change your sentence.
Prosecute them? How exactly have the Left-wingers actually managed to convince one another that not toeing the Democratic party line is a punishable crime? This is a powerful demonstration of that fact that if a lie is repeated enough ends up as the truth.