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Interpreting the Constitution In the Digital Era 144

Posted by timothy
from the you'll-notice-it-never-says-floppy-disks dept.
oik writes "NPR's Fresh Air this week had an interesting interview with Jeffrey Rosen, one of the authors of Constitution 3.0 , which addresses a number of issues to do with interpreting the US Constitution in the face of new technologies (both present and future). Many of the topics which he touches on come up on Slashdot a lot (including the GPS tracking cases). It's well worth listening to the program (link in the main page), of which the linked article is just a summary."
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Interpreting the Constitution In the Digital Era

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  • The real issue (Score:5, Interesting)

    by Baldrson (78598) * on Saturday December 03, 2011 @11:29AM (#38249916) Homepage Journal
    If you are really interested in issues of Constitutionality and electronic technology, the issue most relevant to the original intent of the US Constitution was the establishment of de facto censorship of free speech created by the broadcast networks under the licensing authority of the Federal government. The broadcast licenses thereby issued allows public discourse to be limited to the range of issues and opinion determined by central authorities far from the citizens they were to "inform".

    No tyrant in history was ever able to grab such power and the effect over the 20th century has been absolutely devastating to the United States. Even today, with the increasing disintermediation (and consequent slow recovery of freedom) of information, you still have public opinion being molded by the likes of Jeffrey Rosen and NPR. Indeed, no candidate seeking public office at the Federal level has had a hope of winning that office without the support of the broadcast networks, whose unconstitutionality is so ignored by Jeffrey Rosen and NPR (for obvious reasons).

    • Re:The real issue (Score:5, Informative)

      by Xanny (2500844) on Saturday December 03, 2011 @11:42AM (#38249994)

      The power of media is just part of a recurring theme of politicians just ignoring the constitution and putting Supreme Court judges in place to keep whatever backwards legislation they pass as law.

      If all three branches of government are controlled by private media dollars, there are no checks and balances left, and there is no way to enforce the constitution if all the branches are taken out of the picture like they are right now.

      I mean that is the main reason for OWS, getting corporate influence out of government. The real solution is to really understand what the constitution was for - it was just a document to unify the states under a common base law. That was the reason for the 10th amendment. The states should be handling almost everything the fed is right now, and through financial mobility anyone disenfranchised with a given state could move to one that better suits their political ideology. The problem is that states have become irrelevant as amendments like direct voting of senators came about removing the states from the federal level.

      It really is just a side effect of the top down politics when they should be bottom up - new ideas of political discourse should come from local attempts at new ideas and good ideas should build up across districts into state laws, and eventually if everyone starts doing the same thing it might become national law. The way it is now is just backwards

      • by Galestar (1473827)
        Couldn't agree more. Large central government not only tramples all over our rights - it is just asking for corruption by powerful private interests.
      • So you want the United States to turn into the American Union? Well, I guess it's working fairly well for Europe, but I though most Americans absolutely hated the EU.

        • It's not as explicit in the Constitution, but if you read the Declaration of Independence, you will notice that the states are free and independent states.
          • by i.r.id10t (595143)

            There was a dust up in the 1860s that kinda put that thought to rest...

            • by Fjandr (66656)

              Yup. Lincoln ended slavery, but in so doing also ended all but the pretense that the US was a republican union.

        • Re:The real issue (Score:4, Insightful)

          by Runaway1956 (1322357) on Saturday December 03, 2011 @01:09PM (#38250628) Homepage Journal

          Please, look at the name of our nation again. United STATES of America. Like Pete Venkman already said, a bunch of free and independent states united together for mutual support. I don't recall where in my history books that the states abdicated their rights, in deference to the Corporate American Empire. I guess it was around the time that the federal government decided to expand interstate commerce laws. (not all of the fed's interstate commerce regulations are wrong, just as not all of them are right)

          • by ubrgeek (679399)
            Which is why we used to be referred to as "these" United States instead of "the."
          • Re:The real issue (Score:4, Informative)

            by CrimsonAvenger (580665) on Saturday December 03, 2011 @02:45PM (#38251422)

            United STATES of America.

            One of those interesting bits of historical trivia - before the Civil War, "United States" was plural ("these United States"). Afterwards, it was singular ("the United States").

            Which should give you a clue how the Founders intended things.

            • That's just a reference to the corporation THE UNITED STATES as contrasted with the political compact, codified by the Constitution, between the federal government and the sovereign States. It's not a change to the compact of the significance you imply, only that the Corporation of THE UNITED STATES did not exist before 14th Amendment. But it's an entirely separate entity.
      • The 17th amendment certainly has some terrible effects on governance, but having 700,000 people per Congressional district is worse. [thirty-thousand.org] Another huge blow is the Supreme Court's invention of 'Incorporation', [libertyfund.org] which, along with enumerated powers of Congress, is at the heart of most issues, including those discussed on NPR and by the OP.
      • by khallow (566160)

        If all three branches of government are controlled by private media dollars

        They aren't. You ought to look into the ways that the federal government has been manipulating private media, for example, feeding prepared stories to the media or controlling content by controlling access to press conferences. I point this out because there is this insistence, despite copious evidence to the contrary, that business not a corrupt government is the greater threat to US freedom. I otherwise agree with your remarks.

        • They aren't. You ought to look into the ways that the federal government has been manipulating private media, for example, feeding prepared stories to the media or controlling content by controlling access to press conferences.

          It's a chicken-and-egg problem. You have politicians meddling in the affairs of private media, but said politicians were themselves elected largely through efforts of that same media. After the cycle has repeated a few times, there are no clear boundaries anymore - one is the other, they're not separate agents.

    • by Qzukk (229616)

      Add to this that every single technological advance in communications has been violated by the government despite the fact that the Constitution clearly indicates that it has no authority to do so whatsoever. Telegraphs, telephones, cellphones, the internet, gps... all tapped first, until the supreme court said "no".

      While advances in communication seem to be stalling, sadly, advances in government bullshit continue apace. Why bother with all this warrant and constitutional limits on power when you can jus

      • Re: (Score:3, Informative)

        by anagama (611277)

        My guess is that ultimately, Obama will veto the law allowing citizens to be held indefinitely without trial,

        Obama did suggest he would veto this bill, but not because he cares about civil liberties. His threat was based on the notion that the President already has these powers and that the Congressional mandate would be an usurpation of and interference with those powers.

        Here is a quote from the White House's position on the bill:

        Detainee Matters: The Administration objects to and has serious legal and p

        • Re:The real issue (Score:5, Insightful)

          by anagama (611277) <obamaisaneocon@nothingchanged.org> on Saturday December 03, 2011 @12:15PM (#38250234) Homepage

          Here's a real gem from Obama's position on the law:

          Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult.

          In other words, Obama is saying "Bush, Cheney, and I have managed to get get around constitution for the last decade. If you pass this bill, you jeopardize all that hard work."

  • by Colin Smith (2679) on Saturday December 03, 2011 @11:38AM (#38249962)

    When you can simply ignore it.

    It's not as if there are any repercussions.
     

    • by russotto (537200)

      If you merely ignore the constitution, your enemies may use that against you; not because they have love of the constitution, but merely because they can. Interpreting it out of existence is both more permanent and less likely to rebound on you. Example: Having the cops beat the shit out of Occupy Wall Street protesters on camera. Sure, you can get away with it, but it could cause political damage. Better: Re-interpret the constitution so "freedom of assembly" means "assembly only in designated protes

      • by anagama (611277)

        If you merely ignore the constitution, your enemies may use that against you; not because they have love of the constitution, but merely because they can.

        Indeed they can use it against you, but that is only part of the theater event we call politics, i.e., huge rhetorical differences, zero policy differences. Witness the disparaging remarks democrats made against Bush for his civil liberties violations, such as due process free detention. Those same people, now that Obama is in office, are using Bush/Che

        • by russotto (537200)

          Indeed they can use it against you, but that is only part of the theater event we call politics, i.e., huge rhetorical differences, zero policy differences. Witness the disparaging remarks democrats made against Bush for his civil liberties violations, such as due process free detention. Those same people, now that Obama is in office, are using Bush/Cheney arguments to justify Obama's policies including due process free execution.

          Just because the two sides are the same from our viewpoint doesn't mean that t

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Also what is a real pain (and this has been happening for a long time). It is almost the same problem as 'patents and copyright'. That for some reason now that there are computers that the whole thing doesnt make sense anymore.

      The rules are almost dead simple to follow yet people keep trying to reinterpert them to mean something else.

      The first 7 articles say how our gov works. Day to day and in exception cases.

      The first 10 amendments were to limit the first 7 articles and what they do. They were writte

  • While the political themes of Kim Stanley Robinson's trilogy beginning with Red Mars [amazon.com] have divided readers, I found the constitutional debates within to be fascinating. The settlers of Mars come together in a constitutional convention that takes new, present-day technology and ecological themes into account, and examine a far larger set of models of political organization than the American Founding Fathers knew about. Junking it all and starting from scratch seems like a wonderful opportunity. Ever since I read those books in the mid-1990s, I've felt sad that not only is American democracy co-opted by special interests and the inevitability of a stagnant two-party system, but even at best it would be limited to a late 18th-century worldview.
    • by hort_wort (1401963) on Saturday December 03, 2011 @11:59AM (#38250130)

      ... I've felt sad that not only is American democracy co-opted by special interests and the inevitability of a stagnant two-party system, but even at best it would be limited to a late 18th-century worldview.

      It'll make you even more sad to find out that Thomas Jefferson believed the Constitution should be scrapped and rewritten every 19 years, a new set of rules that each generation decides for itself to follow. All the modern politicians that talk about the founding fathers tend to skip over that point.

      You're welcome. :-\

    • Please. Utopian crack dreams are hardly new. KSR is just the latest crackhead proposing stupid non-solutions.

      Spider Robinson wrote good scifi, because he wrote about things he understood. Hippies in communes with a hidden alien in their midst, I can suspend that much disbelief.

      KSR proposes that the hippie commune is the crew of a space mission. They would have _all_ died while arguing about the ecology of dead mars. They would have all died again when the earth rightfully cut off their supplies. Not a

    • The whole series was really fascinating, and the society that grew out of their ideals pretty fascinating (even if just as fantastic as the technologies from Blue Mars. But they had similar advantages that the American colonists did: The population was selected as people who were either the best educated, most capable, most adventurous, non-conformist in their native populations, etc., and they had a lot of virgin resources and the best technology available for taking advantage of them.

      Crap, I forgot the

  • by doug141 (863552) on Saturday December 03, 2011 @11:45AM (#38250022)
    One thing I always found interesting about constitutional interpretation is that the same people who argue the 2nd amendment should only apply to muskets (on the basis that the writers of the constitution supposedly could not have imagined anyone ever designing what they all wanted... a gun that shoots faster and further), will turn right around and assert the first amendment has a wide reach with respect to electronic mass media. Electronic mass media... like that was easier for a colonist to see coming than a rifle upgrade.
    • by jellie (949898)

      I've always felt that the "Living Constitution" depends on the context of the current period. Even those who strongly support gun rights (e.g., Scalia) has said that it may not be unconstitutional to bar felons from possessing certains, for example. But the constitution has never said anything regarding that.

      The fact that technology has changed so much over the past 200+ years shows that originalism makes little if any sense now. Like the GPS tracking and the Fourth Amendment -- I think it's an unreasonable

      • If you do away with interpreting the Constitution according to the original intent of the Framers, the Constitution serves no useful purpose and should just be done away with. Either the Constitution means what the Framers intended it to mean, with changes made according to the system they put in place to change it, or it doesn't really mean anything and is just used to support whatever it is that the powers that be wish to do (and to shelter them from the consequences of not doing the things that they do n
        • The trouble with "Originalism" is that it really only addresses a fairly modest set of problems.

          The Constitution itself is necessarily somewhat underdetermined. It simply isn't exhaustive enough to unambiguously define the correct outcomes for all potential questions that might arise when it was written, never mind those raised by technological and social changes unknown to the writers.

          Effectively, "Originalism" boils down to operating on the assumption that the Constitution 'incorporates by reference
          • by Attila Dimedici (1036002) on Saturday December 03, 2011 @03:33PM (#38251856)
            Well, there are two reasons for that. The primary reason that the Constitution is "underdetermined" is because it was a document designed to limit the power of government. Many of the issues that people think the Constitution does not speak clearly enough on are issues that the Framers considered to be things that the Federal government should not be involved in. The second was that the Framers intended that those who followed them should amend the Constitution as needed to address new issues.
            For the most part though, I believe that the "problems" you see in the Constitution result from the attempts to twist it to allow the federal government to do things the Framers thought they had explicitly denied it the power to do.
            • The primary reason that the Constitution is "underdetermined" is because it was a document designed to limit the power of government.

              Actually, I think it's rather the opposite: the Constitution was a document designed to grant the government certain powers, on the understanding that, by default, the government has no powers whatsoever.

              • I would agree with that interpretation. However, my point still stands, most of the things that are "undetermined" are really things that the Framers intended the federal government to have no power over so they saw no reason to define the federal government's role. Well, actually, they thought they had defined the federal government's role as being no role.
          • The Constitution itself is necessarily somewhat underdetermined. It simply isn't exhaustive enough to unambiguously define the correct outcomes for all potential questions that might arise when it was written, never mind those raised by technological and social changes unknown to the writers.

            Bah! What a bunch of crap. It doesn't need to be unambiguous, because the entire thing flows from the basic principal that the Federal government is only needed for resolving major conflicts. It states even explicitly that "Anything that is not spelled out in here is totally up to the states, or it's a right of the people" (so to speak).

            The problem at this point isn't so much "Originalism", it's the stare decisis that even the originalists adhere to. It tends to override any common sense originalist i

            • by Delwin (599872)
              The problem is that you're skipping a large part of our history - namely the Civil War. The United States is a very different entity than These United States because of that war. In a way the 14th Amendment is as important, if not more so, than the rest of the document.
      • by kenh (9056)

        The government placing something on your car to record/transmit your location is an "unreasonable search" - the gov't has no right to put anything on your car, be it a bumper sticker or GPS tracker... The fourth ammendment covers unreasonable searches, how does it not apply? Would any person think it reasonable for the gov't to place a tracking (or really ANY) device on your personal property?

        What about the GPS tracker example is so exceptional that it is outside the scope of the Constitution?

        • How about that for a constitution hack? Just use the power to eminent domain to temporarily make the property "public" for the duration of whatever it is they want to do with it. The "just compensation" would be a scrip that the government would claim to be of exact same value as the property - and, indeed, when presented with that scrip, they would give the property back to you.

    • by kenh (9056)

      They also had cannons back then, does the 2nd ammendment cover cannons too?

      • by doug141 (863552)
        What the 2nd amendment covers today is up to the whim of the 9 on today's court. The issue I raise is that people who would answer your cannon question don't then apply whatever logic they used to the other amendments. Instead, they first consider what answer they want for each individual issue, then selectively pick arguments to support their preference of "what the constitution covers." BTW cannons are ordnance, not arms.
      • by kcbnac (854015)

        Sadly no. Anything above 0.50" is considered a "destructive device" and BATFE would like to have a word with you over :-/

      • by i.r.id10t (595143)

        Miller vs US re: the NFA of '34 said that his sawed off shotgun and full auto stuff wasn't protected because they weren't common military arms of the times.... of course, they are now.

        Which means I guess that grandpa's duck gun isn't protected, but the part of the '84 FOPA that cuts off new additions of full auto stuff to the NFA registry is unconstitutional...

    • Muskets are outrageous, but to think that the 2nd amendment protects FABs or nukes or germ warefare would also be outrageous.

  • by Mashiki (184564)

    Why should you interpret the constitution? Being that it's a founding document, what should be done is it should be the guiding principal. It should remain as it is. Laws should be tested, and the laws be tested against the constitution. You get into no type of serious fuckups when you interpret a founding document, because you go from "this document says, in the intention of the framers" to "this document says, in the intention of the state."

    This is generally how was test law in Canada. It works well,

  • by roman_mir (125474) on Saturday December 03, 2011 @12:12PM (#38250212) Homepage Journal

    This is the real problem - 'interpreting' the Constitution.

    There should be no such thing, no 'interpreting', because this is used to justify anything, any power grab, any expansion of gov't power, any kind of thing that gov't wants.

    You know it's true, they interpret Bibles the way they want to fit in any new technological advancement and same becomes a problem with the Constitution. It's not supposed to be interpreted, it's supposed to be followed. It's the law.

    It's not the Constitution that needs interpretation (and I am not saying the document is perfect, far from it, it is not making it explicit that it shouldn't be interpreted for example).

    The law that applies to the private citizens is not interpreted - you kill somebody - there is no 'interpretation' of the law. The question is only of your guilt.

    It should be same with the Constitution - gov't takes over some power, the question is only the amount of guilt that should be allocated, not whether it was permitted by the Constitution that this power was supposed to be taken over.

    There is a larger question here as well - should gov't even be allowed to pass NEW laws at all? I don't think so.

    If the physics laws were changing all the time (F=MA today, some time from today it's F=2MA, some time later it's F=A; E=MC2, E=MC, E=C, E=4C; Today Hydrogen has this mass, tomorrow it's half that.) There would be no stars, no planets, no life in that unstable system.

    Same with society and economy and gov't. Gov't sets the basic laws and then society and economy work around those laws. Change the laws and economy/society now must change how it works to accommodate the change of laws. Do too much of this and enough times and you destroy the economy and society.

    That's what you have now - destruction of economy and society by gov't.

    This was caused by various loose 'interpretations' of the Constitution (at first), and now it's just blatant disregard to the Constitution, which is LAW that gov't is supposed to abide by.

    This is your fundamental problem.

    • by LocalH (28506) on Saturday December 03, 2011 @01:17PM (#38250704) Homepage

      There is a larger question here as well - should gov't even be allowed to pass NEW laws at all? I don't think so.

      The problem isn't new laws, it's that they exceed their authorization to pass laws covering certain things. The Interstate Commerce Clause basically turned into the legal equivalent of a rootkit when it can cover activities that are fully intrastate, merely because they can "affect" interstate actions. That little bit of legal wrangling pretty much guts the 9th and 10th, from a practical standpoint. If a person is too "self-sufficient", that means they are affecting the interstate market for various things and must be stopped (see Wickard v Filburn [wikipedia.org]).

    • You run against two problems if you don't interpret:

      • The human language is ambiguous.
      • You can't cover all possible scenarios.

      So we pay all these lawyers and judges because they know the spirit of the law (what it's trying to accomplish), and they have the tools to make informed decisions on unforeseen cases. Just imagine a binding document from a few centuries ago. It's impossible that it could have foreseen virtual realities, GPS, pervasive drug traffic, or near-zero cost of duplicating information.

      Anyway,

      • Do you really think there shouldn't be any new laws after this whole financial fiasco? They gamed the system because they were allowed to, and the constitution couldn't possibly have expected this kind of things.

        Constitution is not a replacement for laws - it is, indeed, a framework for them. But if a law that you need for the circumstances of the moment does not fit into the framework, the proper approach is to adjust the framework - we call it "amending the constitution" - not to try to pretend that it fits the law when it does not in reality.

        Note that the present sorry shape of the constitution with respect to modern realities is precisely because it was, for so long, being creatively "interpreted" to suit whate

    • by chrismcb (983081)

      The law that applies to the private citizens is not interpreted - you kill somebody - there is no 'interpretation' of the law. The question is only of your guilt.

      Actually there is. The law that applies to the private citizens is MOST DEFINITELY interpreted. This is what the courts do. Laws are not black and white, and it is up to the judges to interpret the laws. Whether this is a law ratified by congress, or the consititution.

    • The law that applies to the private citizens is not interpreted - you kill somebody - there is no 'interpretation' of the law.

      What law did Jeffery Skillings break when running Enron?

  • by IndustrialComplex (975015) on Saturday December 03, 2011 @12:16PM (#38250244)

    I'll make it easy. Stick with the traditional interpretation and follow it like plain language. If you treat the Constitution as a list of government permissions and not a set of restrictions, and ditch the attempts to interpret the enumerated rights as somehow limiting anything not mentioned...

    The Constitution is VERY easy to interpret when you are trying to argue on the behalf of freedom. The only time you need a crack lawyer to argue an interpretation is when you are trying to present an interpretation that seeks to limit freedom.

    Some argue that such a simple approach is flawed as it would prevent the government from performing functions that we want them to do such as the EPA, Dept of Ed., etc. That is not true because for anything so important and universal that it requires the federal government, then we need to go through the effort to amend the constitution to grant the government the authority to do that. If it really is that important then passing the amendment will happen. If it doesnt pass that means you either were proposing something that more people than you didn't want, or you need to spend more time convincing people that they want the government to do what you say they should do.

    Imagine you hire someone to repair a wall in your house. While he is working he sees you have a broken window and decides that you would be better off and fixes the window of his own volition. What he didn't know is that you were going to build an addition and the window was being removed anyway.

    The repairman exceeded his authority and even though he was doing something 'good', but the right way to do it would be to ask you to amend his contract to grant him the authority to fix the window in addition to the wall.

    Sure, its harder, but hat process ensures that you have to 'opt in' to increased government rather than the easier method that requires us to actively 'opt out' by continually passing new 'protections' each time the government figures a way around the old protections.

    • by kenh (9056)

      The Constitution is VERY easy to interpret when you are trying to argue on the behalf of freedom. The only time you need a crack lawyer to argue an interpretation is when you are trying to present an interpretation that seeks to limit freedom.

      +1

  • by XxtraLarGe (551297) on Saturday December 03, 2011 @12:23PM (#38250316) Journal
    You can bet the Second Amendment would be gone. That's the lynchpin keeping all the other ones in place. On another note, the constitution doesn't need to be recreated. The founders created a clear method for amending it, which has happened over two dozen times now.
  • by Compaqt (1758360) on Saturday December 03, 2011 @12:25PM (#38250338) Homepage

    What part of "papers and effects" don't they understand?

    The right of the people to be secure in their persons, houses, papers, and effects [constitution.org], against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Your computer (and phone) is as much your "papers" as the media is a "press".

    What right did they get to GPS-track you? Isn't your car an "effect"? Even if not, it still is your property. So where did the government get the right to use your property without due process of law (5th amendment)?

    Where'd the government get the right to confiscate servers? Domain names? Where's the due process of law?

    The constitutional view is that the government only has such powers as have specifically been given to it. The state's view is that they have plenary (unlimited) power until stopped by a greater power.

    A Constitution 3.0 would not be needed if there were a proper perspective on the existing constitution.

    Read the link for the Federalist Papers, the Antifederalist Papers, and more.

    • by blueg3 (192743)

      Searching or seizing your computer actually does require a warrant. Same with your phone, except for some odd cases that occur much too easily and are still being debated (like when you're pulled over for a traffic violation).

      Seizing servers requires a warrant as well.

      The one that's difficult is acquiring your data from a third party, such as a service provider. Protection against search and seizure is generally considered to only apply to those things in your possession and not to items held on your behalf

  • The fact that it's subject to interpretation is in itself showing how ridiculous the whole argument is. It's a piece of paper...it will mean whatever the government employees, judges and cops want it to mean.

  • I see coming out of people is disturbing. They don't want corporate control but they want state's to decide things where corporate money is easier to influence. In fact they've proven in more rural states buying the legislature or a federal seat is cheap compared to the populous states. The constitution was designed that the state's had rights to decide basic customs and rules that make sense for their populous at their time. The Federal government though was just like the government of England, it was

  • You do not have to worry about that.

    The constitution no longer exists, practically.

    Most people don't even know what it stands for or even know what it is due to the immigration policies.

    People don't come here any more for freedom or liberty, since that too, is almost gone as well.

    They come for a job. Those too, are on the way out.

    What will be left is a fascist dictatorship. They will come for you in the night.

    They will come for your wife, if she misses a payment on her student loan.

    They will come for your

    • Most people don't even know what it stands for or even know what it is due to the immigration policies.

      Pretty sure that U.S. naturalization procedure includes a test on Constitution.

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