At the same time, the background of lawmakers has increasingly narrowed.
In Australia, for example, it used to be commonplace for the Parliament to contain people whose first careers were as teachers, farmers, train drivers, engineers, small businessmen and so forth.
Not any more. Today it's an almost wall-to-wall collection of law students who were all groomed by party machines. Go to uni, join political club, graduate and work in minister's office/a union/a politically-connected law firm, get pre-selected at the local branch, elected to Parliament.
At no point has this person a) studied something other than law or b) held down an ordinary job or run a small business. I imagine the pattern is similar elsewhere.
And so our law making bodies are filled with folk whose main skill is forensic disputation. This is problematic when technical debates are held because politicians are often mistrustful of experts outside their circle of loyalty -- because for any expert I can procure, someone else can get an expert to say the opposite.
Having experts inside the circle of trust is golden. The classic example is the banning of CFCs. Margaret Thatcher's undergraduate degree was in chemistry and so she understood the mechanisms. In turn she was able to assure Regan that the phenomenon was real and serious and the rest is history.
I have for some time toyed with the idea of forming a non-partisan organisation whose purpose is helping STEM professionals to get elected. Please contact me by email (check my profile) if you are interested.
Besides, these people are not only ignorant, they are willfully ignorant. They could have asked the experts/"nerds" anytime if they wanted to, but they never will, because they're not interested. They are not going to let expert knowledge get in the way of doing what industry lobbyists paid them to do.
I think Jacques' idea of trying to get some technical people elected is a pretty fantastic one. I think it makes sense to have an offline discussion about how that should be done.
The argument against SOPA can't be "Congress has no business wading outside its technical competency"; it has to be, "this is a bad proposal, intrinsically, for reasons X, Y, and Z".
Sure. Some of those organizations have interests that make the world a better place. You do know there are lobbyists out there working against SOPA, right?
I agree that financial influence is a problem, but only part of it has anything to do with campaign contributions and backscratching. Plain and simple, interests that have (or causes that attract) more money can afford to hire more people to actually do the lobbying work from research to face-to-face discussion (this is one reason why wealth distribution issues matter bigtime).
And in the meanwhile, fewer and fewer people do lobbying for any reason other than money. Or to put it another way, maybe the other half of the problem is that we're not all trying to be better lobbyists. I remember hearing an interview with Rep Bill Orton a while back (interesting guy -- a Democrat elected to Utah's 3rd district, one of the most conservative Republican districts out there) where he said his biggest surprise after election was how few "ordinary citizens" came to visit.
Our system is much more like the British system, where for technical expertise ministers rely on the public servants of the department they manage. Many of the public servants have university degrees relevant to the areas they work in, and years of relevant experience.
While the system isn't without its problems (see the British comedy 'yes minister' for a more detailed explanation :-) at least ministers have somebody 'non partisan' providing them with expertise and recommendations.
Then revert Senate seats to be appointed, not elected, positions. The Senate and President will (hopefully) squash crazy ideas that may escape the House.
William F. Buckley said, "I'd rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University."
I don't know how the jury mechanism will prevent people selected abusing their position much when they have it. Or even worse being quickly manipulated, since the house is a law creating body.
This is called "sortition". The wikipedia entry is pretty good (http://en.wikipedia.org/wiki/Sortition).
> Then revert Senate seats to be appointed, not elected, positions.
In the US and Australia it used to be the case that Senators were appointed by States.
> > Then revert Senate seats to be appointed, not elected, positions.
> In the US and Australia it used to be the case that Senators were appointed by States.
That's why I suggested the seats be "reverted" to appointments.
And they will be appointed based on whose advice, precisely?
Look at it from the POV of the state governor, who is looking down a long list of people who all want to be on the Senate and all have something like a real qualification. It's easily over a hundred names, none of whom you've ever so much as had a beer with. How do you narrow it down to two? Well, there's someone in your mansion's antechamber right now who is more than willing to help you select the right people...
And, or perhaps especially, judges.
The problem today in my mind is not only the money is speech problem we face today, but the more general problem that the more people you have one person represent the less they are representative of their electorate and the more generalized they become, even in the best case, they don't represent the full broad beliefs and ideals of the constituents. You want representation as fine grained as possible, with a pyramid of layers of it stacking up to a national level, rather than a system that is as top down as the national -> state -> local game we have going right now.
it is worth remembering that inside-track "experts" come with their own set of tradeoffs, especially when they have unchallenged influence - think Mcnamara and Kissinger, Rice and Wolfowitz, and Summers and gang.
He makes the point that virtually no average citizens support this (either they're against it or they don't know anything about it.) People often worry that congress fails when they can't agree on anything, but this makes me think that the time to really worry is when they do agree. When they disagree, they're at least probably mirroring the electorate.
Where it got interesting is when Mel Watt came out and said "We all know that everyone in this room on both sides has enough resources to pull in experts that will aid their side of the argument equally, so we're going to get into the same mess we did when we talk about derivatives being the most evil things on earth by one party and the saving grace by another". Good point, but the difference here is that not all parties that are for SOPA have purely financial incentives as the banks did.
That's truly frightening. "We have no clues and we both invite biased experts so let's just disregard facts and vote according to our ideology."
It is OK for a politician to vote on laws about things he does not completely understands, the catch is that the JOB of a politician is to know WHO to ask to get an expert advice. If they can't do that they are simply not fit for the job. The rush without reason should indicate to them that something screwy is happening. Yeah, "screwy", come on, politicians can not even identify THAT ? It is either gross incompetence or conspiracy. Since the W Bush administration I no longer bet on which one is the correct option.
That's the whole job!
If he can't do it, get him out of it.
No idea if Congress has that option.
So I was a bit confused when later on I was hearing a lot of "No"s. Had I missed the vote for that amendment and they were voting on something else? Nope. They were just denying common sense.
I'm not even sure how they would do it on a per domain basis. What about subdomains? One guy posts something on his Tumblr and all the Tumblr's go down? I'm sure they have no idea what that means and would just say "take down all the sites!"
On another note, though I don't mind the term generally, I was annoyed by them referring over and over to "nerds". "I'm not a nerd", "Bring in the nerds"… It's fine in some contexts but in the context of discussing a law, I think "technical experts", "people who have a clue" is more appropriate.
A common political tactic is to automatically vote "no" for anything you don't understand or for which you have not received instructions from factional/party leadership. After all, it might a trojan horse that undermines your own goals.
But it looked like it was the time to present why such and such amendments should be added, and then vote on it. If they can't decide on the spot, why have the vote on the spot then?
That particular amendment was especially surprising to me because of how obvious it is (for us "nerds" that is), and because his explanation was pretty clear. But I know what you're saying, it's not how the game is played…
There's a great deal of exchange between politicians in different countries -- the International Parliamentary Union, various politically-aligned groups like the International Democratic Union and so on. Plus exchanges for young aspiring politicians. So practices and techniques tend to pop up all over the world. Maybe the "Default to No" came from Australia, or Britain, or the USA. I have no idea.
In a similar vein to Heinlein's idea of creating a house of legislature whose only power it is to repeal laws, I have thought that one of the underlying problems we have with government is this one-way trap of legislation; once a thing is enacted, it pretty much stays enacted forever. There's virtually no equivalent way to get something off the books. It's no wonder we just have more laws and more laws and more laws; how would the opposite result occur?
Except that in that case, it wasn't no to the law but no to an amendment to the law. By saying no, they were actually agreeing to more things in the law. It would have indeed be easier to later on add "block a site by IP address" to the law… (though that still wouldn't have made sense)
Fast forward to 2:45.
SOPA will cause rampant censorship of the internet... in the United States.
I am a US citizen, currently living in the US, and I hate this, but even so, it makes me feel better to remember that there's a big, big world outside our borders. If the US flies off the rails on this, I fully expect the rest of the world to shrug and move on. The internet and the Americans have been closely intertwined since the beginning but I don't expect it will always be that way. The America that created the internet is more or less gone now. Its time for the rest of the world to step up.
Another problem is that it doesn't matter how many times a SOPA-like law is stopped in time. It will simply return as many times as needed until it finally passes. And once legislation passes, it becomes immortal.
Correlation is not causation. It's just that the same lobbies at work there are at work here too. Democracy is dead.
Even now, I don't think there are any other countries who are willing to plant their flag on free speech, in the uncompromising way the framers of the US Constitution intended. In the UK, they still tilt libel laws heavily in favor of public figures, and are even willing to prosecute crimes like "glorification of terrorism". In my country, Canada, we have a great tradition of freedom of speech, but in practice we're willing to dispose of it when it's good politics. And even other Western countries one thinks of as bastions of tolerance still have blasphemy laws.
So if the USA goes down, I'm not sure what other society is ready to step up. Iceland?
I expect the makers of SOPA et al think they're dictating terms to the world. I think will turn out to be just isolationism in disguise.
The effects of this won't just be confined to the USA.
Outside of agreements, America gets held up as the example to emulate. If something passes in the US, it becomes that much harder to fight the spread to our own countries.
So yes, we have an interest in what happens. :)
SOPA is horrifying. No doubt about it. But it's funny how many people I meet who share this view, yet think giant multinationals are the best suited institutions for running the world. Because media conglomerates have our best interests at heart. Like our rights. Those things are universally respected. </SocialDemocratThursdays>
Yeah, yeah, libertarians don't believe corporations should corrupt the political process, reign supreme, etc. For that matter, though, neither do people on the Left think government should make bad corrupt laws.
And sometimes, just sometimes, the lawmakers read the group's recommendations and base their votes on those recommendations.
We cannot expect a much better response to any collective action problem.
Clearly, this is not happening with a bill that was written by and for the media industry. But the source of the problem is not governance per se, but rather the fact that the system has been corrupted.
"There ought to be a law, I think, that in order to regulate something you have to have some understanding of it."
Ne'er were truer words written. Why on earth do we allow people who have no real understanding of technology to regulate it so closely? It's a train wreck in the making, one you'll be hard pressed to avoid should this bill get approved.
If someone did actually make a law like that then nothing would be passed because nobody would be able to understand everything anyway. Fact is, even if they pass this law then there will just be more creative ways to get around it... it's the guiding principal upon which the internet is based.
I am amazed at how most of the committee do not want to hear from experts, and ignore the facts with a quick dismissal like "Oh, I'm not a nerd, I don't understand, but what I do know is that piracy is theft and we must stop it.".
How can they not listen to the experts?
EDIT: Here's a livestream http://www.justin.tv/unearthed365#/w/2249527504
Worse yet, it's possible for people to study the subject and still exhibit strong myopic symptoms. This is the origin of cargo-cult programming(to name one example).
Like the "Patriot" Act they have no clue what exactly they are voting on, and I don't think they care, they are doing what they are bribed to do. The hearing is just theater, it's meaningless, they've already decided to get in on the take.
some reps against sopa, for an open internet:
Without regulation the Internet would be monopolized by big business and criminals will prey on your children.
Good thing the State is there to protect us. Don't forget to pay your taxes, and have a happy holidays!
It was frighteningly manipulative.
Also, who's loosing their job, really? RIAA lawyers? Entertainment industry bureaucrats? Excuse me for being snarky, but oh no what a tremendous loss for society!
- Congresswoman Zoe Lofgren, 20:15 (http://www.justin.tv/unearthed365/b/302702510?)
But what does that mean for Hackers? I think with enough work we could make a network off of the regulated lines. I live in a rather sparse city and even now I can throw a ball far enough to hit the next techy over. Push comes to shove we could have a mini network several blocks wide that doesn't touch a single www link.
Wireless is almost ready, security is probably the biggest issue right now but the technology is available, just not affordable. But what about the tech giants against the SOPA? If "push comes to shove" would they fund a new network that has less control?
Then at what point is the government allowed to intervene? If a sizable network was built from the ground up separate from the internet are they allowed to slap down regulations? I want to say no because they didn't fund it, but then at the same time what's really stopping them? If they're able to throw SOPA through, convincing these dweebs that a private uncontrolled network is not worthy of SOPA2.0 would not be difficult to do.
Can I get some hacker-friendly input? I know a lot of us here are software oriented but I'm certain I'm not the only one that lurks this site with background in network provisioning.
In business you would work your way up. Employee >> Supervisor of Employees >> Manager with budgets >> Area Manager >> Country Manger >> CEO. You gain responsibility as you go. MP's do not have this. They fall into a job which they are almost never qualified for. Some do OK. However.. if you look closely at the majority you will see mistakes that anywhere else would see them fired.
In the states these dubiously qualified MP's are now looking to legislate an global network as a single nation... I am sure that some of them cannot even comprehend what the Internet is.
This will only be enforced against sites that are small or controversial enough that it won't cause general outrage when they're disappeared from the web.
Yet the looming threat that someone could remove YouTube from the web will be enough to keep the next Google from buying/creating the next YouTube.
I suppose the Elves leaving .com might do it too.
I would like to vote any of them that may be in my district out of office as soon as possible.
"Two per cent of the people of the United States own sixty per cent of the property of the United States. Yet they produced none of it. By legislation, by craft and cunning, by control of Congress and the courts, they took to themselves what others produced. Sixty-six per cent of the people of the United States own five per cent of the property of the United States. Yet they produced all of the wealth and have none of it. Why do not the producers of this wealth have what they produce? Because the making of the laws and the control of the courts is in the hands of those who do not work, and this has been true from the beginning of the Government. The convention which framed the Constitution of the United States was composed of fifty-five members. A majority were lawyers—not one farmer, mechanic or laborer. Forty owned Revolutionary Scrip. Fourteen were land speculators. Twenty-four were money-lenders. Eleven were merchants. Fifteen were slave-holders. They made a Constitution to protect the rights of property and not the rights of man, and, ever since, Congress has been controlled by the property owner, and has framed laws in their interests and their interests only, and always refused to frame any laws in the interest of those who produce all the wealth and have none of it."
by Senator Richard F. Pettigrew, 1921
Yet that is what government does, day in and day out. They regulate industries which work in ways they don't understand, and they do it primarily for political motivations.
The MPAA may want tools to fight piracy, but to politicians, who don't really care about piracy, this is an opportunity to have something to campaign on, and it gives the government more power.
More power means more prestige and more money for them, if not now, in their post career lives when they lobby, etc.
More regulations gives them more control over industry- the power to threaten to make the regulations even worse, or the threat that their opponent will do that if they don't get re-elected (so please give generously!)
I don't think these people are "well intentioned". They don't actually want to help anybody. Theft is already against the law. SOPA won't change that, it won't stop piracy, and its not criminalizing piracy.
No, they're politicians. And they're not even corrupt politicians. This is simply the nature of what they do. They pass laws, they shake down industry, and they get paid for passing ever more laws without regard for the impact of those laws.
Hell, when those laws cause massive destruction to the economy, what do they do? They turn around and say "Well, If we'd been able to pass the law I proposed, this wouldn't have happened! Here, we need to rush into force even more regulations to make sure this never happens again!"
There's a famous(?) libertarian author by the name of L. Neil Smith who's got a saying that's very applicable here:
"Government is a disease masquerading as its own cure."
I hope we stop SOPA. But the lesson I would hope a lot of you take away from this is that SOPA is not an isolated incident, it is one of thousands of incidents, most of which go by completely unmentioned each year, where the system works to undermine human rights and make people's lives worse. These guys aren't corrupt, the system is corrupt.
The constitution, in the enumeration clause and in the Bill of Rights, attempted to prevent this. The enumeration clause limits the powers of the federal government to only those enumerated in the constitution.
Regulation of the internet, or communications of any kind, is not an enumerated power of the Federal Government. This means that when the federal government does this, it is doing it without authorization. Further, the Bill of Rights forbids congress from engaging in censorship. SOPA clearly authorizes censorship so they're also in violation of the Bill of Rights.
These words in the constitution, in this day and age have very little teeth. The PATRIOT act runs afoul of them as well, but nobody has succeeded in getting it overturned.
The situation will continue to get worse. Even if SOPA is defeated-- this isn't the first attempt-- it will come back in a few years.
I think that the only possible solution is a technological one. I think that the only way to to fight them is with technology and disobedience to the very idea that they have the right to restrain speech or control the internet.
The courts will not help us, and they certainly won't, and every election is so stage managed that nobody who actually knows the difference between a domain name and an IP address will ever get elected.
Help us with technology, its our only hope!
I have sympathy for the representatives as they are elected on a first past the post basis. They need corporate sponsors to fund their expensive campaigns. If they were to attempt to change the way the electoral system works they'd be gone by lunchtime.
Organizations who fund campaigns aren't acting in the interest of the people. By having representatives dependent on these organizations they'll never act for the good of the people. This is the primary reason why the system in America is flawed and will only get worse as time goes on. By slowing grassroots movements it erodes the power of the voters away.
That's why it doesn't matter if SOPA is killed. There will be another one soon. If they can't push a bill through they might amend a similar one or find another backdoor.
It's not and incompetent government at fault. It's a culture of corporate dependency.
There's no single silver bullet here - there need to be reforms in more than a few directions.
Government is like XML. Just when you think it can't get any more bloated they decide it also needs to do X!
It just means that the way it works need to be adjusted.
"For example, to borrow an idea from Yale’s Bruce Ackerman and Ian Ayres, if elections were funded by what we could call “democracy vouchers,” where citizens could allocate up to $50 to any candidate and candidates could receive money only from citizens in their districts, then a dependency upon voters might well be the same as, or close enough to, a dependency upon contributors."
“Regulation of the internet, or communications of any kind, is not an enumerated power of the Federal Government. This means that when the federal government does this, it is doing it without authorization.”
What? In what universe could the Internet NOT be considered interstate commerce? Or international commerce? It is both! There is no argument whatsoever that you can make that says it is not Constitutional for Congress to pass laws about the Internet, especially piracy, which is the very essence of interstate and international commerce.
“Further, the Bill of Rights forbids congress from engaging in censorship. SOPA clearly authorizes censorship so they're also in violation of the Bill of Rights.”
Unfortunately, this isn't as straightforward as you make it seem. The Constitution doesn't just say you can't limit speech. There are years of jurisprudence and years of common law precedent that form the true vision of what the First Amendment means today. The fact that you can't falsely yell fire in a theater is a typical example. And there are even other parts of the Constitution—including the right to pass laws to protect “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. All of these temper the First Amendment, as the First Amendment tempers them. You can't just ignore them because you disagree with a law.
Thus, while I think SOPA is a terrible, terrible law, and that its implementation would be catastrophic to the very progress that the Congress is claiming to promote, I don't know that it is unconstitutional, if they truly believe (as some may well do) that it will promote this progress. To ignore this gray area dilutes one's argument to the point of being inconsequential in a true debate about this horrible piece of legislation.
“I think that the only possible solution is a technological one. I think that the only way to to fight them is with technology and disobedience to the very idea that they have the right to restrain speech or control the internet.”
I agree that disobedience is a solution. Indeed, it is and has always been the ultimate and only solution when the government ignores and harms its people.
Thus the irony that groups have never successfully lived without one for any measurable period of time. Government is another word for hierarchy. We may be approaching a time when we can break free of hierarchy, but I do not think we are there yet.
You might as well call writing in a newspaper commerce, or a telephone system, or a city plaza.
That commercial acts transpire through the medium does not make the medium an actualization of platonic commerce.
It is great for advertising goods, just as a newspaper or magazine is. That doesn't make a newspaper just a medium for commerce.
"Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power... First, Congress may regulate the use of the channels of interstate commerce... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce."
Well, that depends strongly on your definitions. If you believe that any hierarchy is government, you're undoubtedly correct. If you have a definition that involves a monopoly on force, as many libertarians and anarchists do, then there are historical periods where sizable populations (for their milieu) lived without a government for generations.
I always find this argument irritating. You don't need to be an attorney or a jurist to twist words around, postulate social contexts, and invent hidden meanings. The minute that society agrees that the phrase "Congress shall make no law" means something other than "Congress shall make no law," I'm as qualified as you are, or as qualified as the Chief Justice of the Supreme Court is, to decide what that phrase really means. At that point, we can no longer even pretend to be honoring the founders' intents, so we might as well go full retard.
I rather like the Bill of Rights the way it was written, but I would understand if the nation decided to hold serious discussions about if, and how, amendments such as the First, Second, Fourth, and Fifth should be modified and adapted to better accommodate modern society's needs. Even though I might disagree with the outcome, I still think it would be better if we reviewed the Constitution regularly and changed it where we felt it was necessary, than to continue paying lip service to the entire document and the intent behind it while ignoring both at will.
What if constitutional language-seeking behavior were more human, and evolved with us?
It is philosophical, but psychologically healthy to recognize what needs governing now. Is a government contextually present more able to fit reality?
If no question is stupid. "A wise man can learn more from a foolish question than a fool can learn from a wise answer."..... Why is it felt governing and law is unquestionable? Sometimes our definition of stable is wrought?
A different angle, in same direction. Better constituting our futures is important.
The fist amendment states, "congress shall make no law abridging freedom of speech". Blocking access to websites clearly violates that. Thus congress is explicitly in violation of the constitution, without regard to anything any court might say. Further, US Code 18-242 makes it a crime (a felony if one is armed) to violate the constitutional rights of any citizen. This means that passing SOPA would be, itself, a crime, at least in my interpretation.
The "shouting fire in a crowded theater" example does not refute the protections for free speech. In that case, the crime is not speaking the word fire while inside a theater, but in causing a panic, which is quite different.
I'm sure the word "Fire" can be heard, often shouted, on broadway quite regularly, when the author of the play included it in the dialogue.
I suggest that you take some time and read the constitution in its entirety. In fact, even better would be to get one of the many books that cover its writing, including citations of the intents and comments of the writers and past editions. The constitution is quite readable and quite explicit.
It is also quite different from the result after "years of jurisprudence" and precedent, which, like I pointed out in my original post, suffer from the intrinsic corruption endemic to government.
As Lysander Spooner once said, "either the constitution authorized such government as we have, or it has failed to prevent it." No ruling of any judge can overrule what is said in the constitution, and the constitution does not need to be interpreted very much, it is quite straight forward.
The reason it is this way is that the founding fathers were no fools. They knew judges and politicians would use emotion, expidents and pressures to try and change the system for their ends. It is a testament to their foresight that the system has lasted as long as it has, but they knew it would ultimately fail.
Thus they wrote a constitution that any american could read and comprehend, and they were quite clear that americans needed to take up arms against their government to ensure that the government remained restrained by the constitution:
"The tree of liberty must be renewed from time to time by the blood of patriots and tyrants, it is its natural manure."
To the extent that our government bears little resemblance to the one outlined by this document, our government is one that is not authorized by the document, and thus wholly illegitimate. No amount of laws or court rulings can change this.
To the extent that this divergence has persisted, we as a people have failed to uphold the vigilance that was required of us.
Hierarchy simply means an arrangement between people with division of roles. Corporations are hierarchies but they are not governments.
There is a key difference. Governments impose their will on those who are subjugated by force, with violence. If you're subject to the rule of a government you don't have a choice, even when the government is violating your rights (as it would be with SOPA).
This is not the case with corporations, as employees, customers and owners of corporations all participate in the hierarchy on a voluntary basis. You are free to boycott them, resign your position, or sell your shares, if you disagree with the policies of the corporation.
You have almost no recourse when you disagree with government.
People can live in peace, and they can do it without governments, and they have successfully for centuries, under quite a variety of arrangements. The only reason for the prevalence of government we see today is the technology of warfare gave small bands of people the power to conquer and subjugate larger populations.
But it is not the natural state of man, any more than other forms of slavery were a natural state when they were more prevalent.... and slavery in the form practiced in the United States in the past, and elsewhere in the world has lasted essentially as long as governments.... for exactly the same reason.
I think you have to question whether you're on sure footing when your argument requires you to relitigate Marbury vs. Madison.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
--- 8< ---
You can't look at the Constitution and declare that, for instance, Congress has no power to "regulate", as that isn't one of its enumerated powers. The authority to do that is vested with the Supreme Court. The track record of your underlying argument --- that Congress should keep its hands off X or Y or Z, because it has no enumerated power to tamper with it --- is not encouraging.
1) the Commerce Clause has broad, powerful language. It was interpreted in its broad sense only a few decades after the Constitution was ratified, both by the court and the first few Congresses.
2) the framers, at least many of them, did intend this broad reading. They intended to have a national government with broad power to regulate commerce, as a response to the articles of confederation. This "camp" won not only at the drafting stage, but in the few decades after as it was interpreted.
3) a reading of the First Amendment incompatible with other clauses of the constitution, and the common law incorporated by reference is purely non-sensical. The framers knew what patents and copyrights were-the first Copyright Act was passed in 1790.
SOPA is a stupid law, but in broad terms it's within the heart of Congress's enumated power: the power to regulate the interstate flow of property created directly pursuant to a constitutional provision.
Regarding the track record of my argument, I will not disagree, it is not encouraging.
If it were encouraging, I might believe that a just government were possible.
Unfortunately the track record you point out only serves to confirm the theoretical argument that I've been slightly making, which could be:
tl;dr: Power corrupts, and the corrupt seek government power.
 It should also be noted that in this ruling ,the Supreme Court also rightly ruled that any law passed that was in violation of the constitution was null and void the moment it was passed, and it did not need the supreme court to rule as such for it to be null and void. Further, they are correct that when two "laws" are in conflict it is right for them to judge which one holds, their key error is in thinking that one of the laws they can decide to very rule is the constitution.
 I'm open to quotes from the constitution itself, or the framers that disagree with this perspective, but I'm not likely to debate it much further.
At the end of the day, most people have this perception that the supreme court is "naturally" or "rightfully" the decider of whether things are constitutional or not, and my opponent above seems to think that the documents meaning can change over time. I can't dissuade people of that belief... but I can only point out that if that is the case, the inevitable result is eventually tyranny.
Consider this. How can any law, morally, that is not enumerated in the constitution as a power granted to the federal government, even if passed by the congress unanimously, signed by the president, and upheld by the supreme court as "constitutional"-- be legitimate?
The very existence of these institutions is created by the constitution.
They must rely on the constitution to claim any legitimacy at all.
Thus it matters not, logically, even if all three of them agree to do something, if that something is not authorized by the constitution, its not authorized at all.
I know this is essentially irrelevant because all three have simply chosen to ignore the constitution for the most part.
I just want to address the theoretical argument that the supreme court, or any of the other branches, or all three together, can decide to ignore the constitution and have any legitimacy.
I respect your strong feelings on this matter, but you aren't arguing from US jurisprudence at all.
It's also unfair to say I'm not "arguing from US jurisprudence at all", because essentially you're saying "I'm not arguing without already conceding that the constitution is meaningless.", only you're putting it in terms that imply I'm being unreasonable.
Actually, I'll take that as concession of my points in full.
The constitution says what it says. IF you don't like it, or the government doesn't like it, it has provisions for how to amend it.
Ignoring it is something they cannot do, because when they do that, they lose authorization under it.
This is quite logical, and I think irrefutable.
Anyway, I understand your general line of attack, I don't find it compelling and feel that I've already refuted it... and comments on HN often go off into the weeds so, I'm done.
Marbury v Madison didn't come out of left field. Hamilton presaged it in the Federalist Papers, explaining not only that the judiciary under our constitution is responsible for "interpreting" the law (his words), but that the gravity of that responsibility is one of the reasons they have permanent tenure, to keep them independent of the legislature.
Hamilton envisioned a government in which conflicts between the "people" (e.g. the Constitution) and the courts would be resolved simply by amending the Constitution. As could just as easily be done to, for instance, end all regulation and (one supposes) the 2-centuries-old concept of judicial review.
I understand what you're saying and agree that there's insufficient compatibility between our worldviews to productively argue about the Constitutionality of laws arising from conflicts between the explicitly enumerated concerns in the Constitution (here: the enumerated power of Congress to secure copyright, and the First Amendment).
Yes, those years of jurisprudence and precedent which were produced by people who were taking cues from the same quite readable constitution.
All of whom are, of course, not only wrong but illegitimate, to the extent they don't read the constitution the way you and your favorite thinkers do.
"Governments impose their will on those who are subjugated by force, with violence. This is not the case with corporations, as employees, customers and owners of corporations all participate in the hierarchy on a voluntary basis."
Sure. The state is legitimized coercion, so if we can only get rid of it or limit it enough, there won't be any coercion!
The meaning of language, as with the meaning of law, evolves with the times. It's irrelevant what they meant in 1787. In 1787, landowners were a minority of the population, we were barely figuring out how to make machines, the concept of a calculating machine was a century away (ignoring, admittedly, the abacus), and communicating from one end of the then-tiny-by-comparison US to the other was a multi-day affair at best. Everything had a different meaning. Judicial review and amendment are the two processes that exist to help the law evolve with the times. What I am stating isn't my own interpretation of the regulation of interstate commerce, it is the current interpretation as the law of the land. I'm sorry you have a problem with that, but that's what the amendment process is for.
“Further, "regulations" as we commonly understand them, are forbidden by the constitution, which explicitly denies the legislative branch the power to delegate its power to unelected bodies or to other branches.”
You are once again acting as if judicial review is nonexistent. Your love of the Constitution evidently excludes a love of the underlying system that carries it forward, even though these are part and parcel of the package of American government. You don't get one without the other. If something is interpreted incorrectly in your mind by the Court, the thing to do is to amend the Constitution to make it clearer what the correct interpretation is.
“The fist amendment states, "congress shall make no law abridging freedom of speech". Blocking access to websites clearly violates that. Thus congress is explicitly in violation of the constitution, without regard to anything any court might say. Further, US Code 18-242 makes it a crime (a felony if one is armed) to violate the constitutional rights of any citizen. This means that passing SOPA would be, itself, a crime, at least in my interpretation.”
If you argue that there is no power to regulate interstate commerce in the modern sense, obviously this follows. However, you are factually wrong, as current interpretations of the Constitutional allowances on interstate commerce clearly allow regulation of the Internet. Again, this is not to mention the Constitutional allowances for copyright enforcement. At which point, free speech is a much less clear argument, as it clashes with other provisions in the Constitution. In these cases, it is up to the judicial system to decide where that blurry line is.
The argument being made for SOPA, not that I agree with it, is that piracy is harmful to the creators of Art, much like the panic would be harmful to the people within a theater.
“It is also quite different from the result after "years of jurisprudence" and precedent, which, like I pointed out in my original post, suffer from the intrinsic corruption endemic to government.”
There it is again.
(a) The Constitution does not stand alone. It stood alone for as long as it took to people to start interpreting it in court. The very fact that the meaning of the document has evolved makes it obvious that despite how readable and explicit it may seem to be, there are many nuances to be found.
(b) It is not 1787. It will never be 1787 again. Things change. The Constitution has some great concepts that we have moved away from and should perhaps move back towards, and it has some really shitty concepts that we tossed by the wayside, and good riddance. But to hold it up as a golden example of everything that was ever right with this country, and state repeatedly that if we only returned to its silken word everything would be glorious once more, is... Just incredibly frustrating.
We do need periodic reminders that Thomas Jefferson could be a total nutcase, so thanks for that. The fact that he spoke the words doesn't make them scripture (and yes, I am getting more sarcastic as the arguments turn more religious).
“Hierarchy simply means an arrangement between people with division of roles. Corporations are hierarchies but they are not governments.”
Corporations only have no consequence if you can find another job once you leave. Arguably the current recession is an excellent example of a place where, for many people, corporations are like government, insofar that you have a choice of working for the corporation, or starving. Except you won't starve, because the government will provide some modest attempt at letting you survive.
That said, you bring up governments and their imposition via violence. Yes. As it turns out, a hierarchy is meaningless if there is no enforcement of the decisions made higher up. In the case of government, your recourse is to leave your country and its government and go elsewhere. Especially as a US citizen, that is easier for you than it is for other people.
I do want to see the examples you have of sustained, government-less establishments. I suspect that it will reveal more about what you define as government than it will new insight on the human condition.
All of this said, by the way, I don't necessarily think SOPA is Constitutional. It seems like it may very well not be (or perhaps more accurately should not be), and I don't like it one bit. But your dogmatic interpretation of the Constitution, and your lack of acknowledgement of the entire judicial infrastructure that keeps it functioning and evolving, is just as harrowing.
He's referring to this: http://en.wikipedia.org/wiki/Shays_Rebellion
You're attacking a strawman. I do not love the constitution. I consider it a complete failure, and I would think this should be obvious to anyone who reads my words carefully. Further, in both of your responses you have failed to bring any evidence, logic, reason, or more importantly, law, to bear against my case. Your position is an ideological one, which is probably the reason you feel comfortable being sarcastic, calling arguments based in law "religious" and referring to people as "nutcase", etc. You don't need me for that, so I'm bowing out.
At this point, the purpose of Congress is to pass laws that increase donations so that they can be reelected. Lessig puts the case fairly clearly in Republic, Lost.
Here's one idea:
Probably not the best solution, but a decent candidate, a good initial stab at the problem.
Careful. Governments don't (or, at least shouldn't) exist in a vacuum. It's society's failure too if they don't represent or don't have an accurate notion of how things actually work. IIRC, the Office of Technology Assessment had this role since the 70's, but was closed in the mid-90's by decision of elected representatives, again, IIRC, as part of cost-cutting measures.
If you don't have independent non-partisan advisory bodies responsible for representing reality accurately, we leave that space to lobbyists who will certainly fail to present an unbiased picture.
> I think that the only possible solution is a technological one. I think that the only way to to fight them is with technology and disobedience to the very idea that they have the right to restrain speech or control the internet.
Remember, governments also can employ technological solutions to this problem - guns and organized violence - at scales most civilians would be easily overwhelmed.
No. The solution is not to disobey the government, but to fix it.
I disagree. I think that all systems are perfectly capable of working just fine. The people that run them (on every level) are the ones that distort them and corrupt. Maybe not because they have ill intent, but simply because they don't act as agents of the system but of themselves, their interests which are often conflicting with the role they should be playing.
As long as there are people involved, there will be corruption. I'm also not suggesting that people should not be involved, but rather that we acknowledge the role of individuals in the system and work toward restraining influence and power leaks.
Apparently, this one is usually attributed to Robert LeFevre. Do you have any sources attributing it to L. Neil Smith?
Unfortunately, every time I try to explain to my friends that I don't want to see a Pixar movie and would rather see a movie at an indie theater instead, no one seems to really understand what the problem with Pixar or Disney or Sony or UMG is.
It turns out, almost no one cares about the DMCA or SOPA or Protect-IP or anything that requires more than 30 seconds to explain. It is quite depressing...
It's like telling people in Soviet Russia that if they don't like Communism, they should boycott the communist food lines. It's an unreasonable request. The free market is no longer free, corporate oligarchies might as well be called Soviet Planning Committees. (What the Soviets called their authoritarian overlords who owned and distributed all the resources)
And by that, you mean the artists and actors and directors who the MPAA and RIAA claim to speak for.
patriot act has already passed.
As I see it, the biggest problem gripping our country right now is a refusal to understand someone else's point of view and come to a reasonable solution that is pretty good for everyone. All we seem to have are multiple sides shouting over each other, simultaneously ignoring everyone else and complaining that no one is listening to them. It is as though somewhere along the way we forgot how to be reasonable adults and have normal conversations. People cease to be caricatures when you understand their concerns and motivations.
I agree that some of the SOPA proposals are way out of line, and I also agree that people passing laws without a full understanding of the ramifications are not helping matters. But we also are not helping matters by trying to oversimplify everything and fit everyone and everything into neat little boxes. That's simply not how the world works.
There's no fundamental reason why Google can't provide media companies and luxury goods manufacturers with easy tools to report issues of copyright and counterfeit goods. Sure, it will cost development money that should be borne by those who stand to gain from the tools, but those are details. The point is, working together we actually have a chance to solve problems. Shouting past each other and appealing to authority (read: lobbying Congress) is never going to solve anything.
So let's try to understand the problems and work together to solve them. It's ludicrous to expect that kind of behavior from our politicians but not to exhibit it ourselves.
It has nothing to do with the fact that one side may not understand one another, that's the point of debate: to persuade the other or a group. What we're seeing here is one side plugging their ears and shouting "LALALALLA" when the opposition tries to create a point.
We simplify stuff for the less tech oriented to help them understand. This committee sitting for SOPA doesn't understand the internet yet they're trying to regulate it. When someone with knowledge comes along and wants to make an analogy to something they will understand they have none of it!
I understand your points but you're viewing everything through rose coloured lenses. What you want is unattainable because you need complete cooperation from all sides; if even one player breaks the rules then the whole system crumbles back to where we are now. Sure Google could provide those tools but the moment one party doesn't get their way (probably because it wasn't fair to the others) they'll go shouting to congress to make it happen, just like we have now. DMCA wasn't enough for MPAA/RIAA so they're in the back pocket of the government to make it worse. Hell, look at what's happening between UMG and MegaUpload right now!