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Feds Seized Hip-Hop Site for a Year, Waiting for Proof of Infringement (wired.com)
309 points by chaostheory on May 4, 2012 | hide | past | web | favorite | 120 comments

The RIAA labels should be required to pay the owner of the site for any lost advertising revenue, lawyer fees for the defendant, and any other costs associated with this case that wasn't paid for by the RIAA labels (the fed seizure, the prosecutor, etc... was paid for by tax payers). They wasted everyones time and money.

Agreed. We have a great exemplar of a private interest abusing their connection with the government to damage someone else. And I don't care if its the RIAA randomly taking down web sites, or Zero Halliburton manipulating where the Army goes to protect Oil Well infrastructure that activity should open up the manipulator to large civil penalties.

I think I'll include that in my discussions with Congressional candidates this election season.

they should be hit with punitive damages as well

"ICE, a branch of the Department of Homeland Security, has the power to seize web domains engaged in infringing activity under the same forfeiture laws used to seize property like houses, cars and boats allegedly tied to illegal activity such as drug running or gambling. But seizing a domain name raises First Amendment concerns — though nothing in the court records show that the government or the court was concerned about the prolonged seizure of the site that is akin to an online printing press."

Yeah, who cares about property rights? Wired seems to think that's unimportant. Freedom of speech is more worthy.

The fact is that "innocent til proven guilty" is being violated when seizures are allowed before a case is proven. And the police go shopping under these forfeiture laws.


As the editor of the piece, I'll completely agree with your assessment. Free speech rights are more important than property rights. The founders thought so too. But the implication that property rights don't matter at all to Wired because free speech rights are more important than them is logically flawed.

Does the article state any concern about property rights?

Regarding the shopping, the conflict of interest is astounding. Go after the guy with the money, because if you can make something stick, you get to steal the money, and keep it for yourself.

Judges are incentivized to sign these asset forfeiture warrants because doing so helps keep them in the good graces of the police who have a union that is very politically powerful when it comes to election time. I know of one case where a judge did so even after having proven to him that no crime was being committed.

It's extremely corrosive, and seems intrinsically corrupt.

This sort of happened to me. I was running an emulated version of a popular MMO and the feds raided my home, took all my computers and seized my bank accounts.

This happened years ago, I was never charged with copyright infringement or money laundering for the donations I collected... but I also never got any of my stuff back.

Question is, if I was never legally charged with a crime, does it still give them the right to seize my things and never give it back?

Yep, cops can seize property or enter property before they charge or convict someone. Usually they need some sort of court approval.

but I also never got any of my stuff back

Well, did you ask? And by ask, I mean have a lawyer ask for you.


> “Here you have ICE making a seizure, based on the say-so of the record company guys, and getting secret extensions as they wait for their masters, the record companies, for evidence to prosecute,” Cohn [the EFF’s legal director] said in a telephone interview. “This is the RIAA controlling a government investigation and holding it up for a year.”

I don't like these seizures either, nor that the RIAA has and uses its influence to tie up somebody's property this way without consequence. But the EFF seems to insist on going that one step too far when they make public comments. The wording ("secret extensions as they wait for their masters", "RIAA controlling a government investigation") turns me right off and makes them sound like cranks.

> "RIAA controlling a government investigation"

Several ex RIAA lawyers hold top Justice Department posts, as was pointed out by Ray Beckerman back when they were appointed.

> "secret extensions as they wait for their masters"

The case was delayed for about a year because they were waiting on the RIAA for proof of infringement after seizing the site based on an RIAA complaint.

But I can see your point about the way they phrased it.

While I don't really like this kind of editorializing, I haven't seen a better explanation for why things work the way they do -- with RIAA/MPAA people often accompanying FBI raids, writing police training material on counterfeit CDs and DVDs, and NBC hosting federal governments' anti-piracy videos on seized domains.

It's totally common to see the defendant and his lawyer sealed out of their own case.

I've posted about my disdain of the practices by the RIAA before and this is only just a digital example of what they have been doing for years. I've spoke about this before on this site so I will not be detailed as I have been in the past.

In the past, record companies would send promotional materials to the DJ's. Their objective was for you to play the material on your radio show, at parties, and on your mixtape. They would explicitly say mixtape because for a long time that was how hip hop was promoted. They would do this through a third party who would cover a region of the country, meeting all of the DJ's.

Every few months, the RIAA would send government agents to arrest people who were selling these same mixtapes. So even though you were getting the wink and the nod to put the music on your mixtape, they would then turn around and use the fact that their music was on your mixtape to try & sue or arrest you.

I was never arrested or sued but I refuse to help promote people who would pull shady practices like this. A big reason why I'm a programmer and not a DJ now.

Its no surprise to see them up to their same antics. I just hate how entrenched they are in both parties of government.

This is akin to saying "Well, I think there is something wrong with the tax code so I'm not going to pay till I figure out what it is". Some time passes, I decide that "Oops, my bad", here's a payment but no penalty payment provided.

It is alarming and frustrating that the land grab for power is seemingly endless and yet we seem to be unable to do anything about it since the cards have been systemically stacked against corrective action (we need a President & Congress that are willing to fix things and that is about as likely to happen while getting struck by lightning).

"Well, I think there is something wrong with the tax code so I'm not going to pay till I figure out what it is"

As an aside, Goldman Sachs and Vodafone have taken almost exactly that tack in the UK recently. In the Vodafone case, they dodged tax illegally for a few years, fought it in court for as long as they could (a few more years), then only had to cough up the original amount, with no interest or fines -- basically because they were pally with David Hartnett, the head of HMRC. Hence swindling the taxpayer out of billions of GBP.

That's not really accurate - they merely interpreted ambiguities in the tax law in the most favourable way for themselves (and paid all the tax that was due... In Luxembourg, another EU country). Google do this (in Ireland). Hell, The Guardian, the most left-wing paper in the UK, does all its financial affairs offshore (really: http://order-order.com/2009/02/02/guardians-tax-hypocrisy-is...). They pay 0.3% of their profits in tax. 0.3%.

A similar case is ongoing now (Gregg's the bakers) but bizarrely public opinion seems to have come down on the opposite side this time.

As far as I understand it, the British tax code has clauses to the effect of "business structures created for the sole purpose of evading tax don't count". In that regard, they didn't follow the rules.

I am beginning to wonder if this is a sign of things where a startup/product dev has to start thinking of the following:

- Go to a p2p model where the app/service is distributed without a need to depend on a domain?

- Really start looking at countries/places to partner with someone to register to get away from a cancer that FBI is becoming?

Seriously, this kind of thing is what puts a muddy cloud on USA as a viable option. I know asian countries aren't a walk in the park (I am an India btw, so know the bureaucracy in India), but maybe a country in Europe can become a shinning beacon for internet liberties?? I almost feel the intelligentsia of USA want a place established with modern principles :)

It's all about the vps services now. I have a decent one, in a country with almost no threat of being taken down :)

Which service and where is it located?

I'm using bytesized hosting here: https://bytesized-hosting.com/

My server is located in Luxembourg.

True! But where are these other reliable ones? AT least which country? I still have a feel we should find a model to distribute our risks.

A new model for secure servers would be amazing. I wish that there was something like bittorrent for servers. No centralized server, instead clients grab data from each other. Some form of security to ensure the data is correct. Possible to find other users in this form, but no way to take the server down.

Quoting this from the other comment I made above:

I'm using bytesized hosting here: https://bytesized-hosting.com/

My server is located in Luxembourg.

> I wish that there was something like bittorrent for servers.

Sounds like content-centric networking: http://en.wikipedia.org/wiki/Content-centric_networking

It's currently a research topic.

Ah! that's awesome, I've been thinking about this idea for years. I'm so glad that this is being worked on.

Thanks for the leads (also to hello_asdf on hosting provider).

I think its time to start taking a stand against these types of seizures.

Is there any thing that can be done for websites against seizures like this?

Serious Question.

Repeal the Pro IP Act passed in 2008.

I would like actual stand ups. We need to start doing something about this as a community.

Host in friendly territories and ask third parties to mirror in the less friendly ones.

Maybe I'm being a bit glib here, but what's to stop the folks behind Dajaz1.com from registering, say, Dajaz2.com and picking up right where they left off? It's not like that domain name was primo real estate, and if they truly weren't breaking the law there isn't any reason they couldn't continue running their site, right?

Well it would be trivial to then seize Dajza2.com as well, but they could easily get Daj.za or something else and use that-- which would be much harder to seize.

However the kim dotcom issue shows that even being located in another country, and the claim that you're "breaking the law" being very flimsy, is not sufficient protection in many cases.

It will be interesting to see if foreign domain names start getting seized by US officials.

You're absolutely right, but after so long some interesting issues start to pop up. If "dajza1.com" was able to be seized on the premise that they had released a specific set of songs, on what grounds could a new domain be seized? "ICE, a branch of the Department of Homeland Security, has the power to seize web domains engaged in infringing activity under the same forfeiture laws used to seize property like houses, cars and boats allegedly tied to illegal activity such as drug running or gambling." If I own and operate prettycatcalendars.com and blackmarketorgans.org, the feds might have grounds to seize one, but certainly not every site I operate? What about a Facebook or Twitter account that is not connected to the infringing site?

(Most of these are rhetorical, and probably don't have very pleasant answers.)

[Edit] Come to think of it, I'm kind of pissed the site owners didn't just laugh at the seizure and immediately start up a new site, purely on principle. URLs are basically irrelevant these days, and ICE seizing them on the grounds that they're "tied to illegal activity" that adds up to copyright infringement at best sounds like a lot of dick-swinging by ridiculous executives in an industry well past its expiration date. They should be treated with appropriate insolence.

>It will be interesting to see if foreign domain names start getting seized by US officials. //

Or it could go down like in the UK and the ISPs could be ordered not to route traffic to/from the website - eg http://www.theinquirer.net/inquirer/news/2172223/virgin-medi...

47 points and no comments? How can this be such an important story if nobody has anything to say about it?

A guess: It's getting points because many people have reposted it; all subsequent posts end up as up-votes for the first post.

I think people post things not only to have a discussion, but because they think they found something others should be aware of.

There doesn't need to be a comment on every post. If the article said enough and people agree with it, it doesn't really require a comment that just says "Agreed." or "Great article."

Maybe they're speechless from the government and RIAA getting away with such a blatant violation of one's civil liberties. I hope this goes to trail so that the site owners are compensated and so that this never happens again. Shame on the government; They're supposed to protect the little guys.

It has been on hacker news some months ago..

The linked article was posted yesterday, so it hasn't been on HN for several months. Perhaps the topic of the article?

What is there to say, really? As the article points out, the RIAA has a serious amount of influence on the government, and they can do whatever they want.

They shouldn't be able to seize a domain like that without hearing the ruling first.

There's no provision in the constitution for stealing property that you think is involved in a crime (only for taking evidence of a crime. They could collect evidence without taking the domain, that is completely unnecessary.) Actually, there's no provision in the constitution for a federal police force of any kind, and for this very reason[1]. (Check the enumerated powers clause specifically. If you disagree, please give me which enumerated power enumerates a federal police force.)

I don't know what will bring the US federal government into compliance with the law, but it seems to me, over the 40 years I've been alive, they've just gotten further and further away from it, and more and more unaccountable as a result.

So, since most of HN seems to be liberals, and I know there are many such crimes that many liberals disagree with: such as the patriot act, the kim dotcom fiasco, airport porno scanners, domestic spying of all kinds, the drug war, even in states that have legalized it, etc. how do you propose to fix this?

Pick the crime the federal government is doing and continuing to do under Obama, and tell me, how do you propose to change things so that the federal government can no longer operate outside the law?

The argument for electing Obama to end the wars and close guantanimo, etc, made some sense if you believed these were Republican initiatives. But we have not seen them undone. In my life this has been consistently the case- Bush didn't undo the "you must lend to people who can't repay" regulations of Clinton with the unsurprising result. Bush didn't undo the prohibitions on firearms clinton put in place, in fact, he banned even more guns than clinton did (something many republicans refuse to admit.) Clinton didn't undo the damage of the Bush years, Bush didn't undo the damage of the Reagan years, Reagan did undo a little of the damage of the Carter years but did more damage himself. Carter- I give him credit- did try to undo a lot of damage and made some progress, but he and reagan are the exceptions... before and after them it hasn't really which "party" (or wing of the one party from my perspective) was in charge.

So, those of you who are younger. The Obama-Bush period is a perfect example. It is always like this. You can re-elect Obama because you think Mittens would be worse (he might be, I can't say, I think he would be just as bad.) But it isn't really going to change anything.

The game is rigged until something asymmetrical comes to change it. That might be a period of severe economic pain (say when the dollar bubble collapses.)

Whatever, if you want things like these domain thefts to end, and you're in your 20s, start working on how you're join to turn back federal authority.

The hippies of the 60s may have been socialist, but they were right about opposing the concentration of power.

The problem is, if google pisses enough people off, their fortunes will start to decline. Government is able to prosecute a drug war for 50+ years, one that pisses huge numbers of people off, but there's no seeming way to stop it.

I'm using the drug war as an example here because it has more history than these domain thefts or the copyright craziness we've seen lately.... and I believe these thefts are a direct result of the drug war's Asset forfeiture "laws".

[1] It would be very hard for the feds to ignore state law and raid drug dispensaries in california if there were no federal police agencies. Further, this is also why the federal government has no enumerated power to criminalize drugs, but states do based on their state constitutions. Desire to control the economy (via regulations) has caused many to defend the "regulate commerce between the states" as if it gave the power to regulate to the feds. (it doesn't, it gives the government the power to prevent states from charging tariffs on the goods of other states... "Regulate" at the time didn't mean what it is commonly used to mean now- at the time it meant "functional" or "keep functional" as in "well regulated militia". If you think about it "the right to keep and bear arms shall not be infringed" means the militia is not to be regulated (in the modern meaning of the term) because it needs to be "regulated" (in the "keeping function" meaning of the term)

There's this pattern I've noticed, where whenever a constitutional issue comes up on HN, nirvana makes this post that starts with a complete constitutional misunderstanding followed by a Randist rant. And it's always top-voted. Yuck.

For starters, the Constitution clearly states that Congress may make laws necessary and proper for all powers vested in the government of the United States, not just those in the enumerated powers of article I. Specifically, the executive branch of the government has the power to enforce laws. It's not really one of those things that's a matter of judicial interpretation--it's in plain text, black and white. The idea that the Constitution does not authorize a "federal police force", as the OP states, is so strange I can't really fathom how someone who's read the Constitution could come up with it.

Anyway, since we were talking about asset forfeiture, I'll add that it has withheld a number of constitutional challenges as well. I'm not an expert on this but I'd be shocked if the OP was.

Seems to me like every post Nirvana makes turns into a battle. I don't intend to pass judgement on the validity of the main point of his posts, but I think what sets people off is the unnecessary blend of either pro-apple rhetoric or libertarian talking-points (all stated as fact) that are controversial topics (by hn standards.)

While I disagree with his conclusions some of the time, the controversial topics + the ultra loquacious posts are always a blast for me to read!

Well, I make arguments. Here, in fact, I was really asking people for ideas! I wasn't even disagreeing with anyone. Its just that, because I like Apple (and that's against the HN consensual ideology) and I'm a libertarian (again frowned upon) SOME people simply can't tolerate me making articulate posts.

I generally get several responses from people who make counter arguments and we have a nice debate (if we both stick around.) But its the people who engage in personal attacks who are VOTED UP on HN and who have there pile in with them to engage in personal attacks, or nonsense arguments, like the ones at the top of this thread (where there are a lot of assertions but very little argument from the opposition).

I'd love for there to be a salon type place where intelligent people can talk about startup topics. (really, and not politics.)

Security of your domain name is a startup topic. The liberal ideology that the constitution places no restraints on government action is something I thought would be kept at bay since this is a conversation about exactly and abuse of that unlimited power... but alas, I was too optimistic.

Surely liberals see power being abused-- they howled when bush was in office, that's for sure, and these same things have been continued under obama, so why can't we talk about that? Why must the topic be about how evil I am for daring to think differently?

A shame your comment was voted down.

There's this pattern I've noticed, whenever I make an argument on HN and cite the constitution, people respond by characterizing me, rather than responding to my arguments. And its always the top voted response. Yuck.

>the Constitution clearly states... it's in plain text, black and white.

Sure sounds like something you'd be able to quote... and why didn't you? What possible reason could you have for choosing not to quote something that is "in plain text, black and white"? This makes me think that the purpose of those assertions is to pretend like you're making an argument, when your real purpose is ad hominem. You could have dropped the ad hominem and just given us the quote and an argument.

After all, its not like I didn't explicitly ask for such a quote in my post! (but ignoring that is necessary to pretend like I've said something I haven't your response is predicated on.)

I really think its a shame that you feel comfortable making ad hominem attacks like this on Hacker News, because by doing so you have derailed any possible discussion about the topic and made me the topic. I think this is anti-intellectual.

I think your down vote brigade is shameful as well. This response is being down voted for pointing out the ad hominem while the ad hominem is up voted. My original post has dropped 5 points in only a few minutes....

The sad thing is my crime is trying to find common ground with liberals. Which means it is nothing that I actually said that you object to, but the very existence of a different way of thinking.

Article 1, section 8: "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Article 2, section 3: "He [The President] must... take care that the laws be faithfully executed." Article 2 also expresses that the President has power to head executive departments and delegate powers thereunto.

While you're at it, you might also want to read https://en.wikipedia.org/wiki/Ad_hominem . 'Ad hominem' is a particular type of invalid deduction. It's not a fancy Latin name for when you feel persecuted.

> The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

We're still waiting for how those "foregoing powers" or "all other powers" include a general police force.

Article 1, section 8 has a list of powers.

Ex parte Yarbrough:

The proposition that it has no such power is supported by the old argument often heard, often repeated, and in this Court never assented to, that, when a question of the power of Congress arises, the advocate of the power must be able to place his finger on words which expressly grant it.

In other words, this argument was a boring cliche in 1884.

We know of no express authority to pass laws to punish theft or burglary of the treasury of the United States. Is there therefore no power in Congress to protect the treasury by punishing such theft and burglary?

You'd find this and probably 100 other establishing SCOTUS cases on even a brief Google foray into the limits of the Necessary and Proper Clause. Long story short: you still have to pay your income taxes.

What's the ninth amendment for?

From the Wikipedia article:

In 1789, while introducing to the House of Representatives nineteen draft Amendments, James Madison addressed what would become the Ninth Amendment as follows:

> It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

Like Alexander Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution." To attempt to solve this problem, Madison submitted this draft to Congress:

> The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Maybe the constitution doesn't cover enough. Let's amend it.

> We know of no express authority to pass laws to punish theft or burglary of the treasury of the United States. Is there therefore no power in Congress to protect the treasury by punishing such theft and burglary?

We're not talking about theft or burglary of the treasury of the US.

The question is general police power.

> Long story short: you still have to pay your income taxes.

Huh? You should make sure that your canned text is relevant.

Here's an easy one - are there any limitations on the commerce power?

>you might also want to read https://en.wikipedia.org/wiki/Ad_hominem

Did you read that page?

"An ad hominem (Latin for "to the man" or "to the person"), short for argumentum ad hominem, is an attempt to negate the truth of a claim by pointing out a negative characteristic or belief of the person supporting it.[1] Ad hominem reasoning is normally described as a logical fallacy.[2][3][4]"

You do it again here: "In particular, something doesn't become ad hominen because you feel insulted by it. But hey, don't let the facts get in the way of your persecution complex."

Neither of your two posts contain any argument, only a (still unsupported) assertion about what the constitution says, and assertions of negative characteristics about me.

Your citation of Article 1, section 8, is an evasion on your part, as it shows that the constitution only authorizes laws to execute "the foregoing Powers". Or in short, Article 1, section 8 proves my claim that the government only has the legal power in the constitution as enumerated by the enumerated powers. You haven't shown the existence of this power either in the enumerated powers clause or elsewhere (in the amendments), and thus you haven't actually addressed my claim at all.

Article 2, section 3, merely requires the president to adhere to the requirements of these enumerated powers. Which is actually further support for my claim, not an undermining of it.

The fact is that these enumerated powers are very specific: "To establish Post Offices and Post Roads;" shows that they are not so broad as to fit anything not mentioned in between the cracks. You can't say the government has the power to establish an Airline and Airports and Air Routes based on that enumeration, for instance.

You blithely quote the word "powers" but ignore that until you show where the constitution grants the power to maintain a standing police force, you haven't even addressed my argument.

You can't make an argument on the points. You have twice pretended like there's an argument to be made, and in the second time, effectively evaded the point and quoted irrelevancies as if it were an argument. I must conclude that you have no argument to make, which explains why you choose personal attack instead. Well, I'm done. You can post whatever you want to try and make me look bad. I don't are. Your doing so only serves to prove my point. Even if you managed to find an actual quote in the constitution that rebuts me completely, your twice choosing to engage in ad hominem rather than debate still means you lost.

So, I'm done. The sad thing is, this is typical of the intolerance for differing perspectives that is exhibited on Hacker News. I was making point where we had common ground-- but you don't care about that. You simply cannot tolerate the existence of someone who can articulate a different perspective. And so you attacked me.

I suspect people like you and the down vote brigade are a large reason why hacker news has become somewhat of a monoculture.

This is 10 paragraphs of text that imply that air traffic control is unconstitutional, along with mine safety, FDA standards for meat, child labor laws, oh, and any privacy protection for electronic communications. It is, to give it a vivid name, a Wesley Snipesian take on the Constitution.

It's obvious why it's catnip to many HN readers; it suggests that the Constitution is a very simple computer program, and that anything the government does that you don't like is a bug in the interpretation of that program.

Unfortunately for this argument, you cannot look at any federal government action and match it up to the black-letter US Constitution while ignoring the two centuries of jurisprudence that put those actions in context. We are not, no matter what 'nirvana thinks, going to reset the federal government around his interpretation of the Constitution.

In partial support of nirvana, I agree that a lot of things the federal government has done since the New Deal have been unconstitutional, but I agree with you that most of those will never be rolled back because it would disrupt society.

The danger is that the consequences of government sticking its fingers into almost everything will eventually become worse than the disruption that would be caused by a reset.

Do you think in this case what the FBI did is a legitimate exercise of federal power? If not, where do you find a limit to government power forbidding them from doing this? It's the same exercise that nirvana is engaged in: finding justification for excluding certain things from government power, when there is no longer any principled way of making that determination. Whether something becomes a law and is considered constitutional depends on the mood of Congress and the Supreme Court. Nothing more. In some cases well-grounded principles can be found. In most cases they cannot.

The Constitution is not a guarantee that the federal government will not make mistakes.

We're not talking about mistakes. We're talking about crimes.

Under federal law, enforcing any laws that are not constitutionally enacted by federal employees, while armed, is a felony. This makes every TSA agent who is armed a felon. The unarmed ones are effectively felons as well due to the cumulative sentences for their crimes.

It doesn't matter that the congress and the president signed a law creating the TSA, under Mabury vs. Madison unconstitutional laws are null and void the moment they are passed. (which makes your lie about my position on Mabury obviously dishonest, but then, what should I expect from you?)

I'm unlikely to respond because you always post the same stuff, generally ad hominem, and you never defend your points. But your running around and engaging in ad hominem is apparently not embarrassing enough even when others point it out. You and the others doing the same thing destroyed HN, you've made rational discussion impossible.

How does the exact same logic not make air traffic controllers felons?

We are not, no matter what 'nirvana thinks...

Nirvana never claimed the government would obey the constitution as written - in fact, he claimed it wouldn't. Your post completely ducks nirvana's question while mocking him and misrepresenting his views.

His question, again: "there are many such crimes that many liberals disagree with: such as the patriot act, the kim dotcom fiasco, airport porno scanners, domestic spying of all kinds, the drug war, even in states that have legalized it, etc. how do you propose to fix this?"

I'm sorry that I've come across as pointlessly mocking him, but this question doesn't make sense to me.

Take for instance the drug war. I don't agree with the drug war. I think criminalization of marijuana is terrible policy. But is it unconstitutional? The Constitution provided a framework within which the citizens of the US were able to elect representatives who passed laws that outlawed marijuana.

"Even in States that have legalized it"? That's an objection the Constitution explicitly presages: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby".

I re-re-read 'nirvana's point, and I think my interpretation is valid and that I haven't misrepresented him.

'nirvana has adopted the idea that much of what the government is doing is illegal because it isn't spelled out in the Constitution (in this one case, because the power to establish a federal police force isn't one of the Enumerated Powers of Congress). That's not how the Constitution works.

Could you be more specific, then, about what you're asking me? How do I propose to fix what? The drug war?

The question, as I'd ask more specifically: what philosophical/legal principle can/do "liberals" [1] use to determine what is or is not a legitimate function of the government?

For example, many liberals believe that Jim Crow laws or laws giving special privileges to straight married couples (but not gay married couples) should not be permitted even with popular electoral support. I.e., liberals often consider "the citizens of the US were able to elect representatives who X" to be an invalid justification for policy X.

The question is, what principle are liberals using to come up with views like this? Another question in the same line of thinking is: is there a principle beyond "I like/dislike this policy" which the courts can use to invalidate laws? (Note that appealing to court precedents and reinterpretations of the constitution doesn't really answer this, since the court can always re-reinterpret or make a new precedent.)

[1] I hate phrasing it this way, since the feelings it generates ("I {love/hate} liberals SOOOO MUCH") reduce everyone's IQ by about 15 pts.

I don't understand. Isn't "Jim Crow laws are unconstitutional" what Brown v. Board of Education decided? The Constitution doesn't provide a black-letter guarantee of education for anyone, and yet the 14th Amendment allowed SCOTUS to hold:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

I just don't see where you're going. I'm interested, but I'm not following.

The issue is not what the court decided, unless you believe the court is always correct and what is constitutional changes w.r.t what the court believes. For example, do you believe that in the period from 1896 (Plessy v Fergusen) until 1954 (Brown v Board of Ed), Jim Crow laws were constitutional?

If not, you must have some underlying principle that tells you Plessy was incorrect. Or, somewhat tangential to constitutionality, you might have an underlying belief as to what constitutes a legitimate function of the government (e.g., perhaps you believe that regulating same-sex acts is not such a function).

The question is, what is that underlying principle (or set of principles)?

This is what Nirvana attempted to ask, while unfortunately getting bogged down in other far more boring matters.

But it's not just "the Supreme Court decided it and thus it is so" (although when push comes to shove...). It's also that the SCOTUS decisions are a hint book to arguments like this.

So, I don't have to reason from first principles to arrive at the conclusion that the 14th Amendment makes "separate but equal" unconstitutional. Brown v. Board lays out the argument that it does. I can't best the argument here in a message board post.

Do you think Brown v. Board is one of the cases SCOTUS got wrong? Genuinely curious.

I think the outcome of Brown v. Board was correct, but I think the reasoning was wrong.

In particular, I dispute the "disparate impact" theory underlying the court's reasoning, namely that segregation does not qualify as equal protection because it is is disproportionately harmful to blacks.

I don't think disproportionate harm is required or relevant. My first principle is that equal protection is violated when gov_decision(circumstances, race1) != gov_decision(circumstances, race2).

Because of this, it would be relevant for me to cite Clarence Thomas in Missouri v Jenkins: http://supreme.justia.com/cases/federal/us/515/70/case.html But since Brown v. Board doesn't take this same first principle, citing them wouldn't help you understand my views (even if I agree with the outcome).

Presumably, if I knew your first principles (and if we are both completely rational, and you are intellectually consistent), I could predict your opinion on any given case. And that's the question Nirvana was asking - what are your first principles?

First, thanks for making me read Missouri v. Jenkins.

I'm not sure I see where you're going. Thomas' reading of Brown v. Board of Ed seems identical to mine:

Public school systems that separated blacks and provided them with superior educational resources--making blacks "feel" superior to whites sent to lesser schools--would violate the Fourteenth Amendment, whether or not the white students felt stigmatized [...]


Regardless of the relative quality of the schools, segregation violated the Constitution because the State classified students based on their race.

But further: the circumstances of these cases are wildly different. Brown v. Board of Ed was about active, de jure segregation of black people and white people. Missouri v. Jenkins was about a school district that became majority-black as a result of white flight.

Kennedy's concurrence was illuminating: it seems to allege that the plaintiff and defendant in this case (the students and the KCMO school district) were colluding: an accident of venue was the only reason KCMO's school district was named defendant, and the actual, unnammed, shadow defendant was the state of Missouri, which was being coerced into funding an otherwise wildly unfundable mandate to create extravagant inner city schools by judicial fiat.

Thomas, Kennedy, and Rehnquist all put heavy attention on the circumstances of this case, that the federal judiciary (a) probably can't impose state taxes by fiat as a backdoor to legislation, and (b) clearly can't do so under the auspices that demographic "segregation" was equivalent to legal segregation. That all makes sense to me.

The FBI, air traffic control, copyright extensions: these are all well supported by legislation. They were not imposed as a backdoor by fiat by an activist court.

Do you think Brown v. Board is one of the cases SCOTUS got wrong? Genuinely curious.

I'm not yummyfajitas nor am I speaking for him.

I believe he's looking for a principle somewhere that links people's moral outrage and the law. People either have their principles or they have the law. If people are having an argument about what is moral the law is irrelevant, if they're having an argument about what is moral the law is irrelevant.

A consistent argument would be either legal or moral. Any argument that treats the law as having moral weight is assigning some kind of quasi-sacred status to it.

Either the PATRIOT Act is legal therefore it is right is an argument that has some weight however tiny XOR it doesn't.

Why do you think

But it's not just "the Supreme Court decided it and thus it is so" (although when push comes to shove...). It's also that the SCOTUS decisions are a hint book to arguments like this.

They're just some political appointees who're mostly very, very smart. The important bit is the political appointees though. If you just assume Republican appointees vote Republican and Democrats Democrat on any given policy position you don't go far wrong. What moral weight can that have?

I'm not making an inverted ad hominem argument, suggesting that they're right simply because they're the Supreme Court. I'm saying, the argument in Brown v. Board was persuasive.

But law is one of those areas where ad hominem is literally true. If the Supreme Court says something is the law then it is, unless there's a constitutional amendment overturning it.

I think the disconnect between you two lies in these areas:

1. Is the federal government empowered to make any law not expressly forbidden by the Constitution?

2. Are there any laws that the states are allowed to make for their own people and territory without being overridden by the federal government?

The crux of your comments seems to lie in a practical argument — it's useful to have the government doing this stuff. nirvana's argument is strictly Constitutional, and is not interested in any conveniences that might be offered by bending the law.

(For the record, I'm not 100% in agreement with either side here. I'm just trying to synthesize what I see as the difference in where you two are coming from.)

As for (1), it seems like answering that question just gets us mired in what "expressly forbidden" means.

As for (2), the Constitution settles this directly; laws enacted by the legislative branch of the federal government are the "supreme law of the land".

>I think criminalization of marijuana is terrible policy. But is it unconstitutional? The Constitution provided a framework within which the citizens of the US were able to elect representatives who passed laws that outlawed marijuana.

You're not pointlessly mocking me, you're mocking me because mocking me IS THE POINT for you.

Otherwise you wouldn't be bringing up arguments that I rebutted in the very first comment.

>I re-re-read 'nirvana's point, and I think my interpretation is valid and that I haven't misrepresented him.

Then you need some remedial schooling.

Show me where these powers are enumerated? You can't so you pretend like the enumerated powers are irrelevant.

>That's not how the Constitution works.

This is a wish, at best an assertion, and certainly not an argument. But it is a statement of your fascist ideology. You want the government to have absolute power to regulate people's lives to the nth degree-- from their access to the internet to what health care they are allowed to have. The constitution explicitly doesn't allow this, so you pretend like it does.

You know this, so you attack me personally, when I point it out.

That's all this is. The facts of reality disagree with your ideology, so you engage in ad hominem. And you seem to always show up whenever I say anything mildly political to attack me for the same reasons. You can't tolerate someone who points out the truth.

Because, if I were wrong, you would have made an argument. You didn't. You attacked me, not the point.

You have a habit of reading personal attacks out of (pointed, perhaps rude) attacks on your arguments. You realize I have no idea who you even are, right?

I know I promised I was done, but it's a day later and the conversation is still on the front page and still continuing.

You want to argue about what nirvana thinks--well, nirvana thinks the FBI is unconstitutional. I believe I've shown this to be black-and-white, read-the-document wrong. The power of the executive to enforce the law is explicitly authorized. Okay, maybe there are some interesting questions about the proper scope of the Commerce Clause, but why are we framing this debate according to the terms of someone who has no clue what he's talking about?

>I believe I've shown this to be black-and-white, read-the-document wrong.

No you haven't. You provided two quotes from the constitution, referring to the limited powers I was talking about, and thus your quotes completely support my position. I've pointed this out already.

This means either you know that you've failed and all your interested in is adhominem-- which means you're incapable of making an argument here. Or you're simply not bright enough to comprehend the point I'm making, which I've illuminated several times.

The problem is, you can't be bothered to read the constitution, and what the constitution says doesn't really matter to your ideology, so you're just going to throw out unsupported nonsense, along with your personal attacks, and act like you've smugly shown me to be wrong.

You have utterly failed. Every time you characterize me, its because you can't rebut my point.

And you can't rebut my point because my point is correct. Its correct because I've actually read the constitution.

You should try it sometime.

I'm unlikely to respond because you always post the same stuff, generally ad hominem, and you never defend your points. But your running around and engaging in ad hominem is apparently not embarrassing enough even when others point it out. You and the others doing the same thing destroyed HN, you've made rational discussion impossible.

Article II, which I quoted, gives the president power to enforce laws. Article I, which I quoted, twice, gives Congress power to legislate this into existence. Article I gives Congress power to legislate any necessary and proper laws for any branch of government. As I have already said. There times, counting now. I even italicized the relevant parts for you when I repeated myself the other time.

Also, stop downvoting anyone who contradicts you. To downvote everyone not on your side is against the spirit of this site.

I love it when the down vote brigade forgets that you can't down vote people who are replying to you and tells you to stop down voting people!

You have still failed to provide a single quote from the constitution that supports your position. Your assertions here are not supported by the quotes you did provide, nor any other place in the constitution. I have also cited the enumerated powers clause which would be completely unnecessary if what you say is true. Since nobody is debating the existence of the enumerated powers clause, your asset ions are nonsense -- in fact, rebutted by my very first post in this topic.

The quotes you did provide, prove my claim. That government is empowered to pass such laws are necessary as to exercise the enumerated powers... and no more.

Until you can find the power in the enumerated powers, or in an a subsequently passed amendment, just asserting you've proven your position over and over again is kinda silly.

This document was written to be understandable by anyone. IF you read it, instead of quoting lines taken out of context you found online, you'll find that it is very clear on the matter.

I must conclude that you know I'm right, but me being right goes against the requirements of your ideology and so you can't admit I'm right and you must stick to repeating your assertion. I'll save you time. You can just stop replying here and save me the time of having to write this very same rebuttal once again.

Either you think the Necessary and Proper clause refers only to the enumerated powers of article 1, section 8, or that the power to execute law is not in fact a government power.

The constitution literally makes reference to the "foregoing powers, and all other Powers" being the province of Congressional law. All other powers, man. All of them. Including the executive's power to, quote, "execute law."

I'm not even sure what to do here. Neither of these are correct. But quoting the bare text of the Constitution doesn't even work. Next you'll assert that black is white.

"The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,

and all other Powers vested by this Constitution in the Government of the United States,

or in any Department or Officer thereof."

Whatever, I'm done here--repeating myself until I'm understood is not my idea of fun.

> Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This clearly states that the powers must be explicitly vested by the Constitution. They can't be made up out of thin air. The state governments != the Government of the United States nor are they Departments or Officers thereof. This passage clearly requires that all federal powers be explicitly granted in the Constitution, though they need not only come from Article 1. Either I'm ignorant of some amendment that grants the powers you're talking about (like the power to have an FDA) or you inadequately understand the meaning of the phrase "vested by". At the end of the day, all of this stuff is stuffed under "regulate interstate commerce" and it's clearly a bastardization of both the word and spirit of the law. If you want broader federal powers, you must amend the constitution, period, and congress has deceitfully snaked its way out of that over and over thanks to the "legislation from the bench" at the Supreme Court that has backed them up at the expense of our constitution's integrity.

Additionally, if you want to learn about all of the ways the FBI has broken the law throughout its existence, I'm talking about stuff outside of any conceivable constitutional allowance, I highly recommend reading this recent book on its history (http://www.amazon.com/Enemies-History-FBI-Tim-Weiner/dp/1400...)

This passage clearly requires that all federal powers be explicitly granted in the Constitution, though they need not only come from Article 1.

Yup. The federal power I'm talking about is in article II, section 3, the power of the President to "faithfully execute" the law. Federal police is normally understood to be "necessary and proper" w.r.t. this, just as local police is an agent of execution for local law.

Right- powers can be added by amendment, for instance the power to levy an income tax as an example. (which shows the "you have to pay your taxes" swipe for what it is.)

I'd be satisfied with a quote from any of the enumerated powers or any of the amendments or anywhere else in the constitution, that explicitly grants the powers in question.

I think their real issue is that they don't understand the constitution because they have never read it, or they were taught that it allows unlimited power, or they want it to allow unlimited power.

I miscalculated that thinking a thread were we have an example of abuse of powers not granted in the enumerated clause would get them to see that.

He didn't just point out "a negative characteristic or belief of the person". He did talk about what they seem to do, but he pointed out substantial issues with the argument itself. Not much ad hominem argumentation there!

Two point:

1. He made no arguments, he just asserted a different conclusion. Which is the equivalent of saying "you're wrong, jackass!" Is that not ad hominem? "Your wrong" is not "substantial issues with the argument itself". (and why would you think you could just say that and expect anyone to believe it when the comment is right there for everyone to see?)

2. Do you want hacker news to be a place where "your wrong, jackass" type posts are acceptable? "Your wrong" is fine- even if it fails to make an argument, I don't mind.

But name calling makes debate difficult-- notice how he has managed to completely derail the topic of debate (which was not about the constitution, but about what can be done when the government is shutting down hip hop sites.)

"You're wrong, jackass" is not ad hominem, because no one is saying you're wrong because you're a jackass, they're first saying that you're wrong and then concluding based on that that you're a jackass. Ad hominem is dismissing an argument based on the characteristics of the one making it, and no one has done that.

Not ad hominem, agreed, but certainly rude. However, I disagree that the poster characterised the situation in this way! He never called him a jackass, and it can't even be said that what was stated was equivalent to this.

The original post made an observation about a way they perceived nirvana posts to HN, then gave substantial reasons why they disagreed with him. There was no aggression tha I could read, only disagreement.

Nirvana is wrong that the original post was the equivalent of "you're wrong, jackass". There were no insults given, this is entirely something that nirvana has read into the post and that isn't there.

I understand you're unhappy about modern constitution law. But, if you want to understand why your interpretation of the constitution differs from the legal community's interpretation of the constitution, here are two good starting points:



when your real purpose is ad hominem

Please stop misusing that term.

I used it correctly and quoted the definition from wikipedia to show I was using it correctly.

Not that I think that it refutes 'nirvana's argument, but you should be aware when you read him that he has an idiosyncratic interpretation of the Constitution. Here's a thread from a few months ago where I tried pointing out to him that he had a shaky argument because it contradicted Marbury v. Madison†:


The tack you'd expect someone to take when that argument comes up would be for them to say "no, you're wrong, I'm not contradicting Marbury v. Madison". The tack 'nirvana took was to suggest that Marbury v. Madison was a perversion of the US Constitution.

Hint book: "establishes Judicial Review, the authority of the Supreme Court to interpret laws from the legislative branch".

Pure ad hominem[1], also linking to a 140 day old previous thread where, instead of responding to my argument, you also engaged in ad hominem. You really think HN readers are so dull brained that you need to warn them about me, lest they be persuaded by my arguments? (Which, by the way, you've dishonestly characterized here. Not all of Marbury was a perversion, part of it was correct.) I think its interesting that there are actually people like you who follow me around on HN in order to chime in and bash me whenever I make a comment that expresses anything other than lockstep adherence to your ideology.

[1] though "not that I think this refutes the point" was a nice attempt to dodge that reality.

Just to be clear, what you said then: "Maybury v. Madison is one of the key examples for my position, as it is a ruling in which the Supreme Court usurped for itself the power to decide the constitutionality of laws. The constitution doesn't grant them that power."

I think you should take me at my word, though. I generally like your comments; I even enjoy these con law debates you have (if only as an opportunity to preen). I'm not bashing you because you're you and you're talking about the Constitution again. I disagree with the substance of your argument and I've been "burnt" by the impedance mismatch between our interpretations of the Constitution before.

I know it's annoying to hear me call your interpretation "idiosyncratic", but I really do think it is. I'm avoiding words like "bad", though.

Yes, Maybury v Madison contained a criminal action on the part of the supreme court where they usurped power that did not belong to them, under the constitution, and where they correctly ruled that unconstitutional laws are invalid the moment they are signed.

The problem is you spend too much time preening, and not enough time listening to what I'm actually arguing, and too much time making broad derogatory characterizations of me-- which you should know-- I take as a sign of having zero knowledge of the subject.

I'm not debating interpretations of the constitution. I'm debating the actual language of the constitution. This is why I asked for a citation, and generally do, when I say the constitution doesn't authorize something-- quote me where it does.

If you do that, THEN we can talk about the interpretations.

Your characterization of my "interpretations" is always irrelevant, whether you call it "idiosyncratic" or "bad" or any other term. The problem is, that's the entire substance of this post I'm responding to.

If you'd made an actual argument on the point, then we could debate it.

What you've done here is called signaling. You derogatorily characterize me, and then you point to an ancient debate where you lost on the facts, by the way, because you're telling other liberals that I'm one of those "crazy" people who thinks for themselves and has actually bothered to read the constitution. Just like the other guy did when he said "randist"[1]

You want to debate me on the constitution? Read it. Talk to me about what it says, don't just make broad assertions and then refer to some legal case. (courts cannot change the language of the constitution, and there is no such thing as precedent having he weight of law.)

You say you've been burned, but that's gotta be a joke-- here I am investing time in arguing with people who can't be bothered to make arguments and instead spend their time characterizing me. You should know, the moment you do that, you've lost the argument as far as I'm concerned and I'm going to point out that choice to you in the hopes that you have enough honor to be ashamed of it.

[1] Since liberal propaganda is constantly hammering on Any Rand, accusing someone of being a "randist" is liberal code for "crazy person". The really sad thing is- the reason they focus on Rand so much is that she was right, they are an anti-intellectual movement. Rather than debate he philosophy and talk about Objectivism-- which might result in some liberals reading Atlas Shrugged because they believed they were supposed to be open minded-- they focus on ad hominems against Rand, figuring few will take the time and go read the book and discover that liberal ideology was completely refuted by it. Whenever I see the word "randist" or randian-- when rand isn't the topic of discussion-- I know I'm talking to someone whose turned their mind over to an ideology and is just unthinkingly regurgitating what they've been told to think. tptacek I'm borderline believing that about you, because you exhibit some of the same symptoms.

It sounds like you're saying that the terms of a debate with you about the Constitution are that we not rely on many, perhaps most, of the holdings of the Supreme Court including and subsequent to Marbury v Madison. The only valid points to be made in this debate are thus based on words that occur directly in the Constitution.

Yea Obama hoodwinked a lot of liberals including me, I agree with you that Obama vs Romney is not much difference except that with a Republican congress Romney could do more damage, and Romney's judges would be more authoritarian. I think their used to be a difference between the parties before Clinton. Clinton's "third way" reformulated the Democratic party to be more corporate friendly and pretty much decided to abandon liberal principles. Previous generation Democrats, Kennedy/LBJ/Carter, were actual liberals who believed in egalitarian principles. The Clinton/Obama school tries to be more "centrist" which basically means conservative-light, and they have been helped in this by the space opened up by Republicans' shift further right. Actual liberals have not been in power for over 30 years.

For what its worth, I don't think we've seen actual conservatives in power for 30 years either. neo-conservatism isn't very conservative at all-- for instance, conservatives really wouldn't care about gay marriage. opposing it goes against conservative principles.

Both parties have become authoritarian versions of themselves.

One point though- In the election of 2000 I often heard people say "If W gets elected it will be the end of abortion rights!" ... yet he had 2 terms and never actually did anything about abortion.

The executive was intended to enforce laws, which is clearly stated in the constitution, so it seems clear that having a force to enforce such laws naturally follows.

I don't think you're correct. The executive administrates laws, the congress creates them, and the enumerated powers determine which laws they can create.

Would you mind providing a quote for what you're talking about, so I can see it in context and understand what its saying?

Does the federal government have the power to prevent slavery? Surely they have the power to enforce the rights laid out in the constitution, right? How can they enforce it without some form of federal police force?

>since most of HN seems to be liberals...

I tend to believe that the majority of hackers in this community are above the shenanigans of partisan politics.

With that said, great perspective above.

Then you must not read HN very much. Political stories are constantly making their way to the front page, and the responses tend to be fairly predictable.

I'm on here everyday. One's opinion can be predictable without being partisan, i.e. Republican or Democrat.

I'm not sure I see how. If your opinions are not guided slavish adherence to an ideology, I shouldn't be able to guess what you'll say about a story just by reading the headline and noting what major ideological groups it's likely to piss off.

Predictable does not imply partisan (though partisan likely does imply predictable).

By way of example, I predict that all of us will say that rape is wrong. Which ideology is that "slavish adherence" to?

I hope you're right and I was meaning to find common ground with the perceived majority to avoid the personal attacks I've gotten in the past (it didn't work, see the top voted response to me.) I apologize to any non-liberals who feel the characterization was unfair. But also, please recognize that I said "liberal" not "democrat", the former being a broad ideology while the latter being a specific party. If there is a better term to have been used there, I'm happy to learn it and use it in the future.

You could just leave the label off. "Many crimes that much of HN disagrees with".

You could even say "that I believe much of HN disagrees with".

> So, since most of HN seems to be liberals, and I know there are many such crimes that many liberals disagree with: such as the patriot act, the kim dotcom fiasco, airport porno scanners, domestic spying of all kinds, the drug war, even in states that have legalized it, etc. how do you propose to fix this?

I gave up and left the USA. I don't think there's any "fixing" it short of taking our productive energies somewhere that respects the rule of law.

I left the US, too, but they seem to be intent on applying the worst of their laws to the rest of the planet.

20 years ago the TSA would have been a strong enough shock to the American public that they would have revolted. Now they accept that level of abuse. So the bar has clearly been raised to a very high level, and it keeps going higher. They're passing so many dangerous laws it's all but impossible to keep up with (and the taxes and regulations to go with them).

The monster in DC expends a lot of effort and money trying to keep the people asleep. It's the story about the frog and the boiling pot of water.

To roll it back would take a two term President dedicated to absolutely nothing else but that effort, and a Congress willing to go along. Scenarios like that only become possible during particularly extreme situations, either war or depression.

70 years ago Americans approved of imprisoning Japanese-American citizens simply for being of Japanese descent. It's hard to say how our views of civil liberties may have shifted, (except to say that if civil liberties have an enemy, it's War).

Now they accept that level of abuse.

That's unfair. The TSA was established by people hiding behind 9/11.

Even this loses context. The suggestion here is that intrusive airport security was a knee-jerk reaction to 9/11. But that's not true at all; we've had intrusive airport security, supported Constitutionally by the framework of "administrative search", for dozens of years.

What happened after 9/11 is that the government (rightly) acknowledged that airport security was run by a decentralized and largely ineffective hodgepodge of private and local security organizations. The TSA was a "reform" of airport security intended to centralize the practice and make it more consistent.

The TSA is obviously terrible and much of airport security is a farce. But this isn't simply a result of people begging for farcical centralized security theater; it's a consequence of centralizing airport security in the federal government and thus making it far simpler for airport security to be "responsive" to "new threats".

The TSA's incompetence and intrusiveness is largely an emergent phenomenon. It isn't a policy goal.

Now, please tell me where in the Constitution it states we can have an Air Force.

Black and white, chapter and verse, if you please.

At first I thought this was a non-sequitor, but I see now you are trying to make the argument that my claim that there is no enumerated authorization for police is silly, because the constitution doesn't enumerate other things-- like the Air Force.

Let me introduce you to The Enumerated Powers Clause, specifically:

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;"

So, clearly it is constitutional to have an Air Force (which is an "army" and in fact started as the air wing of the army) but it is not constitutional to have a "standing army" which is why the appropriations are limited to 2 years.

Interestingly, and going to my original point, one of the reasons for this was the past abuse of the existence of the army as a federal police force, that the revolutionaries wanted to avoid.

Unfortunately, this restriction has been dispensed with, so you can say that the existence of the Air Force is authorized, but not it being a standing army, by the constitution.

Here's a convenient list of the enumerated powers:


If you choose a interpretation of the Elastic Clause, the Supremacy Clause, and the Commerce Clause that is radically different from that of the Supreme Court, you will indeed end up in a situation where much of what the federal government does --- some of it uncongenial to you, like domain seizures, but much of it not, like air traffic control and NOAA --- is "Unconstitutional".

It's therefore a viable rhetorical strategy to attack the pillars of federal Constitutional prerogative head-on; don't like something the FBI is doing? Relitigate the Necessary and Proper clause! All you have to do is win an argument that the Supreme Court got it wrong 150 years ago and you've achieved a legal framework to support almost any argument.

Of course, this only works because in the frictionless vacuum of a message board argument, you can ignore the consequences of a radical new interpretation of the Constitution. And when I say that, I don't just mean "Cargill can sell rotten meat at the supermarket and label it 'Health Meat'", but rather that it does not follow from your argument that we'd have less regulation from the federal government if the Enumerated Powers and Elastic Clause were narrowly construed.

The people obviously want safe food, planes that don't collide no matter how cheap the tickets are, and laws that prevent giant corporations from refusing to offer jobs to people because of their ancestry. So some other mechanism --- a series of Constitutional amendments, most likely --- would have stepped in to fill the vacuum had McCulluch v Maryland gone the other way.

Put simply: if you were right, and the only legitimate powers of Congress were those in the Enumerated Powers, we'd have enumerated more powers since 1810 (starting, I guess, with the power to organize banks, that being where SCOTUS started us down the Necessary And Proper stuff with McCulloch v Maryland).

And you would probably not be better off if we had followed a Constitutional strategy of "run into a problem, call a Constitutional convention and add another enumerated power". The people would likely have enumerated some awfully silly powers.

Except you'd need a 2/3 vote in that scenario to enumerate a new silly power and not the 50% vote required today, so I would think that the government would have fewer silly powers than it does today.

Those silly powers would be harder to "undo" than they are now.

Oh, man! I thought they seized the PHP virtual machine named Hip-Hop. No seriously - at least for few seconds... This must be News Ycombinatorism that I'm suffering...

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