Restore the Old Republic [LWN.net]

Restore the Old Republic

Posted Dec 5, 2005 23:39 UTC (Mon) by jmorris42 (guest, #2203)
In reply to: Linux in a binary world... a doomsday scenario by jwb
Parent article: Linux in a binary world... a doomsday scenario

> The Constitution reserves all rights to the states, and to the people.

Not true, and hasn't been for over a hundred years. The 9th and 10th Amendments are effectively removed from the Constituition by long standing usage. Don't believe me? Then find the justification for the Dept of Education in the US Constituition. Were the 9th and 10th still in effect they would clearly forbid one. I submit the fact it indeed exists as irrefutable proof the 9th and 10th Amendments do NOT in fact exist. I could have just as easilly picked a hundred different proofs. There is some hope that a new Supreme Court might revive them if Stevens could get replaced in the next year or so, but I wouldn't actually bet it on.

The 2nd, despite the best efforts of the NRA, is gone; the fundamental right it enshrined has been replaced by sporadic gifts from the State of a license to bear (certain, very select) arms, revokable at the whim of the State.

The 1st, if any doubt remained of it's effectiveness, was snuffed out when Bush signed the McCain/Fiengold Campaign Finance Reform Act.

Need I go on? Many think the 4th is fading fast (Patriot Act among many other reasons) The 6th can't be said to hold unless you can say with a straight face the courts give ANYONE a 'speedy trial'. The civil judgement against OJ clearly violated Amendment 7 (A jury decided he didn't kill his ex, so a later ruling he was liable for the death clearly violated.) and was upheld. etc.

> But I agree with you, we do not enjoy a natural or legal right to be
> provided with a certain kind of computer and software.

If the original Constituition still held then we wouldn't have a Right to be 'provided' a certain kind of computer but we danged well would have the Right to make/sell/buy/possess/use one. A Supreme Court composed of Originalists would laugh at the DMCA and roll on the floor laughing when the inevitable attempt is eventually made to outlaw non TCPA hardware. Which is why we have to fight to restore the Old Republic, so we can become Free Citizens again instead of Consumers.

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Restore the Old Republic

Posted Dec 6, 2005 0:22 UTC (Tue) by jwb (guest, #15467) [Link] (9 responses)

This is your second psuedo-libertarian rant in two days. Although I appreciate that you are also a subscriber and supporter of LWN, I get the feeling that the readers in general might prefer if you left that topic for a political website.

Restore the Old Republic

Posted Dec 6, 2005 11:52 UTC (Tue) by man_ls (guest, #15091) [Link] (1 responses)

Yes, please. The right to bear tactical nuclear missiles and the right to reenact the Waco Branch Davidian massacre at your own home are of no interest here.

Restore the Old Republic

Posted Dec 18, 2005 22:21 UTC (Sun) by nailed23 (guest, #34627) [Link]

fat chance that his comments about the 2nd amendment doesn't interrest you but he still have the right to say it.

Restore the Old Republic

Posted Dec 6, 2005 21:15 UTC (Tue) by jmorris42 (guest, #2203) [Link] (6 responses)

A lot of the issues we are facing in the tech world are the result of becoming important enough to show up on the radar of the political world. You can only ignore politics if it is willing to ignore you back. Those days are long gone. The only political structure compatible with the generally held beliefs of most tech types is libertarian even if most tend towards socialism out of ignorance. Don't like the DMCA or the eventual law that will mandate TCPA? Well you can't build a reasoned argument against either unless you start from the assumption that we are Free Citizens entitled to be treated as non-criminals and that there are things the State simply cannot be permitted to do. So long as you think the State Enthroned is morally acceptable you have to abide by it's decision that those things we hate are in the best interest of the State and that it, and it alone, has the moral authority to make these decisions for you.

I assert that things are bad generally with our Republic and have been for a couple of generations. And that any attempt to fend off the DRM Hell that is being planned for us needs to start with the basics, restore the Old Republic and the Constituitional limits to State power that would make abominations like the DMCA unthinkable. Trying to kill off each attempt piecemeal is doomed to failure in the longterm, our foes are much better organized and financed, have a lot of power and money at stake and appear to have little moral compuctions about playing dirty. We have to bat 1000, they only need to hit a single time. We have to change the rules of the game.

Restore the Old Republic

Posted Dec 6, 2005 21:49 UTC (Tue) by Baylink (guest, #755) [Link]

I thought this was a *wonderful* assessment of the problem, sir; thanks.

Restore the Old Republic

Posted Dec 8, 2005 9:14 UTC (Thu) by dvdeug (subscriber, #10998) [Link] (4 responses)

Of course; everyone who disagrees with does so out of ignorance, and everyone needs to hear your brilliant lectures even if they are off-topic.

BTW, even the most strict reading of the Commerce Clause would give Congress the power to prohibit interstate trafficing in things the DCMA prohibits.

Restore the Old Republic

Posted Dec 8, 2005 11:02 UTC (Thu) by nix (subscriber, #2304) [Link]

Further, a lot of us aren't governed by the US Constitution at all. Personally I'd rather not see the Old Republic in the UK reestablished: Cromwell was an unpleasant man, and his followers were equally unpleasant religious fanatics who did immense damage to architecture.

Plus I like my Christmas and don't want him back to ban it again.

Restore the Old Republic

Posted Dec 10, 2005 22:12 UTC (Sat) by jmorris42 (guest, #2203) [Link] (2 responses)

> BTW, even the most strict reading of the Commerce Clause would give
> Congress the power to prohibit interstate trafficing in things the DCMA
> prohibits.

Wrong on two counts. The Commerce Clause has been horribly abused of late to attempt to justify things that are blatently unconstituitional. Most attempts to use the Commerce Clause to control anything other than interstate tariffs, shipping, etc are abuses.

But even if you were correct as to the original intent of the writers of the Commerce Clause, the Bill of Rights are AMENDMENTS and therefore superceed anything in the original. "Congress shall make no law...." is pretty blunt. Code IS speech and attempts to supress publishing the source of DeCSS are so obviously an infringement of the First Amendment that only a moron or a "Constituitional Scholar" could fail to see it.

Restore the Old Republic

Posted Dec 11, 2005 6:17 UTC (Sun) by dvdeug (subscriber, #10998) [Link] (1 responses)

I don't care about how the Commerce Clause has been abused. It clearly gives Congress the right to control interstate commerce, which would naturally include the right to ban things from being sold across state lines.

As for your reading of the First Amendment, it does not accord with the reading given by the "Old Republic", which passed the Alien and Sedition Acts.

Most code is not any more expressive than a car's engine. People didn't want to copy DeCSS to read it or understand an opinion behind it; they wanted to use it as a tool. Burning a flag to protest the president is protected speech; burning flags to power your generator isn't.

Your attitude that only a moron would disagree with you is the real problem, though. Just because some disagree with you doesn't mean they're ignorant or stupid. Frequently, they have good reasons for their opinions, and discussing it with them instead of insulting them may be enlightening. You're not convincing anyone of anything they didn't believe to begin with; you're just offending them.

Restore the Old Republic

Posted Dec 16, 2005 20:22 UTC (Fri) by Baylink (guest, #755) [Link]

> Burning a flag to protest the president is protected speech; burning flags to power your generator isn't.

No, but it's not *illegal*, either.

Restore the Old Republic

Posted Dec 6, 2005 7:34 UTC (Tue) by job (guest, #670) [Link]

This news site has an international audience and if you are to rant about your national constitution, please make sure that (a) you describe the background well enough so we foreigners get some background and (b) make sure it has some connection to Linux or at least digital technology in general, otherwise it's just noise to us.

Restore the Old Republic

Posted Dec 9, 2005 17:40 UTC (Fri) by giraffedata (guest, #1954) [Link] (2 responses)

The civil judgement against OJ clearly violated Amendment 7 (A jury decided he didn't kill his ex, so a later ruling he was liable for the death clearly violated.)

I have to correct a common misstatement that makes people misunderstand the OJ case: A jury did not decide he didn't kill his ex. Jurors said in interviews after the trial that they thought he did. (And who wouldn't?). Jurors were instructed to decide whether the prosecutor had proved, and done so beyond a reasonable doubt, that OJ killed his ex. Someone can fail to prove something even if it is true. And someone can believe something but still reserve reasonable doubts.

Not that this matters to your argument. The Double Jeopardy clause of the 7th Amendment doesn't say two trials can't come to different conclusions; it says there can't even be a second trial.

I can see that you aren't terribly open to alternative ways of viewing things (so you must really hate lawyers), but lots and lots of smart people believe that the fact tried in OJ's first trial was not the same fact that was tried in the second. And I believe the folks who wrote the Bill Of Rights would say they believed that too.

Restore the Old Republic

Posted Dec 10, 2005 22:24 UTC (Sat) by jmorris42 (guest, #2203) [Link] (1 responses)

> I can see that you aren't terribly open to alternative ways of viewing
> things (so you must really hate lawyers), but lots and lots of smart
> people believe that the fact tried in OJ's first trial was not the same
> fact that was tried in the second.

Yes I do hate laywers, they are a wicked and depraved subspecied that devolved from H. Sapiens about a hundred years ago. ;) But that is beside the point.

As a matter of fact I'm convinced OJ did indeed kill those people, but unless I am ready to declare a revolution and attempt to replace our form of Government, the basic responsibilities of Citizenship require certain things of me. One of those is respecting the verdicts of juries, and a jury of OJ's peers duly declared him to be "Not Guilty" and that has to be that as far as any legally binding decisions. That verdict should have been more than enough to end the civil trial. Simply submit the verdict from the criminal court and the judge should have brought the case to an end with "OJ didn't kill em, he therefore cannot be liable for these deaths. Period, full stop."

YOu can't 'have other ways of viewing' these things, you either respect our system of justice and abide by it's verdicts or you don't, viewing it as just a system to be gamed for benefit. Now I would like to see the system improved, so obvious mistakes like OJ's case happen less often, but that is an entirely different matter from saying I reserve the right to ignore court rulings I don't like.

(And yes I do reserve that right to ignore the system, but as overt acts of Civil Disobediance in which I accept the possibility of prosecution and even punishment.)

Restore the Old Republic

Posted Dec 11, 2005 19:09 UTC (Sun) by giraffedata (guest, #1954) [Link]

I must repeat that the first OJ jury did not say that OJ didn't kill 'em.

I didn't bring it up before because I assumed that someone who can cite the Constitution would be aware of this one crucial difference between a criminal verdict and a civil one in US law, but since you haven't mentioned it, I'm starting to doubt it: Standard of proof.

In a criminal trial the jury must find "beyond a reasonable doubt and to a moral certainty" that the facts supporting conviction are true. In a civil trial the jury must merely find that the facts supporting the plaintiff are proven by "a preponderance of the evidence," i.e. it's more likely than not that they're true.

It makes plenty of sense that there are two standards. In a criminal trial, the defendant has much to lose and the People little to lose if the verdict is wrong. In a civil trial, each side has an equal amount to lose.

It may interest you to know that the double-trial thing doesn't happen in the opposite direction. If you take a criminal conviction verdict into a civil trial, the judge will consider it essentially conclusive proof; he won't even bother to ask a civil jury about those facts. That's because if it's proven beyond a reasonable doubt, then it's also proven by a preponderance of the evidence.

Relevance of US constitution

Posted Dec 10, 2005 17:31 UTC (Sat) by BackSeat (guest, #1886) [Link]

What does the US constitution have to do with this?

Answer: nothing (unless you live in America, possibly).