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The Internet is not commerce. It is a medium of communication.

You might as well call writing in a newspaper commerce, or a telephone system, or a city plaza.

That commercial acts transpire through the medium does not make the medium an actualization of platonic commerce.

More specifically, the Internet is a channel or instrumentality of interstate commerce, both of which the US Supreme Court has held fall under the power of Congress to regulate interstate commerce.

That implies that the internet's primary purpose is commerce, which I wouldn't say is the case.

It is great for advertising goods, just as a newspaper or magazine is. That doesn't make a newspaper just a medium for commerce.

I think your definition of commerce is much narrower than the accepted legal definition. Communications is commerce, hence why the FCC can regulate radio transmissions.

Is commerce taken to mean any action that crosses state boundaries, then? Could you point me to a source that backs that up?

Probably the most recent authority outlining the limits of the commerce clause would be the case of United States v. Lopez (1995).

Search for "channels of commerce." Congress can regulate things such as roadways, waterways, etc, where commerce flows.

But that case has nothing to do with communications, and congress lost the case.

The case lays out the current understanding of Congress's power over commerce:

"Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power... First, Congress may regulate the use of the channels of interstate commerce... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce."

Thanks for clarifying, that does seem to imply pretty widespread authority. What if commerce is only an incidental use of something, though? Commerce is related somehow to a huge number of things which couldn't be considered primarily commercial. There has to be some reasonable limit placed on these things. The internet, radio, newspapers, and so on are not used primarily for commerce.

The power to regulate commerce encompasses the mediums of commerce. This issue was litigated in 1824 and decided in favor of the broad reading of the commerce power espoused by the federalist camp of framers.

Neither is a navigable river, but the federal government regulates then under the commerce power and has virtually since inception.

Thus the irony that groups have never successfully lived without [a government] for any measurable period of time.

Well, that depends strongly on your definitions. If you believe that any hierarchy is government, you're undoubtedly correct. If you have a definition that involves a monopoly on force, as many libertarians and anarchists do, then there are historical periods where sizable populations (for their milieu) lived without a government for generations.

One might be led to think that the First Amendment amends the original text and should therefore prevail if in irreconcilable conflict with Congress' right to pass copyright laws, but you're right that judges try to harmonize the two as much as possible, though they recognize the inherent tension between them and try to balance both.

The federal government does not have the power to regulate interstate commerce, as you're describing, under the constitution. The federal government has the power to ensure that no states forbid the importation of other states goods, or apply duties or tariffs to them. You're using "regulate" in the modern form and applying it to language that was written when the term had a different meaning. "Well regulated militia" means a militia free of encumbrances such that it can be functional, not one with a lot of extra-legislative rules applied to it. This is logical if you think about it- if they wanted the militia to be regulated, they would have laid out the ways he militia should be regulated, or at least enumerated the power to regulate the militia, in the enumerated powers clause. They did not. Further, "regulations" as we commonly understand them, are forbidden by the constitution, which explicitly denies the legislative branch the power to delegate its power to unelected bodies or to other branches.

The fist amendment states, "congress shall make no law abridging freedom of speech". Blocking access to websites clearly violates that. Thus congress is explicitly in violation of the constitution, without regard to anything any court might say. Further, US Code 18-242 makes it a crime (a felony if one is armed) to violate the constitutional rights of any citizen. This means that passing SOPA would be, itself, a crime, at least in my interpretation.

The "shouting fire in a crowded theater" example does not refute the protections for free speech. In that case, the crime is not speaking the word fire while inside a theater, but in causing a panic, which is quite different.

I'm sure the word "Fire" can be heard, often shouted, on broadway quite regularly, when the author of the play included it in the dialogue.

I suggest that you take some time and read the constitution in its entirety. In fact, even better would be to get one of the many books that cover its writing, including citations of the intents and comments of the writers and past editions. The constitution is quite readable and quite explicit.

It is also quite different from the result after "years of jurisprudence" and precedent, which, like I pointed out in my original post, suffer from the intrinsic corruption endemic to government.

As Lysander Spooner once said, "either the constitution authorized such government as we have, or it has failed to prevent it." No ruling of any judge can overrule what is said in the constitution, and the constitution does not need to be interpreted very much, it is quite straight forward.

The reason it is this way is that the founding fathers were no fools. They knew judges and politicians would use emotion, expidents and pressures to try and change the system for their ends. It is a testament to their foresight that the system has lasted as long as it has, but they knew it would ultimately fail.

Thus they wrote a constitution that any american could read and comprehend, and they were quite clear that americans needed to take up arms against their government to ensure that the government remained restrained by the constitution:

"The tree of liberty must be renewed from time to time by the blood of patriots and tyrants, it is its natural manure."

To the extent that our government bears little resemblance to the one outlined by this document, our government is one that is not authorized by the document, and thus wholly illegitimate. No amount of laws or court rulings can change this.

To the extent that this divergence has persisted, we as a people have failed to uphold the vigilance that was required of us.

Hierarchy simply means an arrangement between people with division of roles. Corporations are hierarchies but they are not governments.

There is a key difference. Governments impose their will on those who are subjugated by force, with violence. If you're subject to the rule of a government you don't have a choice, even when the government is violating your rights (as it would be with SOPA).

This is not the case with corporations, as employees, customers and owners of corporations all participate in the hierarchy on a voluntary basis. You are free to boycott them, resign your position, or sell your shares, if you disagree with the policies of the corporation.

You have almost no recourse when you disagree with government.

People can live in peace, and they can do it without governments, and they have successfully for centuries, under quite a variety of arrangements. The only reason for the prevalence of government we see today is the technology of warfare gave small bands of people the power to conquer and subjugate larger populations.

But it is not the natural state of man, any more than other forms of slavery were a natural state when they were more prevalent.... and slavery in the form practiced in the United States in the past, and elsewhere in the world has lasted essentially as long as governments.... for exactly the same reason.

“You're using "regulate" in the modern form and applying it to language that was written when the term had a different meaning.”

The meaning of language, as with the meaning of law, evolves with the times. It's irrelevant what they meant in 1787. In 1787, landowners were a minority of the population, we were barely figuring out how to make machines, the concept of a calculating machine was a century away (ignoring, admittedly, the abacus), and communicating from one end of the then-tiny-by-comparison US to the other was a multi-day affair at best. Everything had a different meaning. Judicial review and amendment are the two processes that exist to help the law evolve with the times. What I am stating isn't my own interpretation of the regulation of interstate commerce, it is the current interpretation as the law of the land. I'm sorry you have a problem with that, but that's what the amendment process is for.

“Further, "regulations" as we commonly understand them, are forbidden by the constitution, which explicitly denies the legislative branch the power to delegate its power to unelected bodies or to other branches.”

You are once again acting as if judicial review is nonexistent. Your love of the Constitution evidently excludes a love of the underlying system that carries it forward, even though these are part and parcel of the package of American government. You don't get one without the other. If something is interpreted incorrectly in your mind by the Court, the thing to do is to amend the Constitution to make it clearer what the correct interpretation is.

“The fist amendment states, "congress shall make no law abridging freedom of speech". Blocking access to websites clearly violates that. Thus congress is explicitly in violation of the constitution, without regard to anything any court might say. Further, US Code 18-242 makes it a crime (a felony if one is armed) to violate the constitutional rights of any citizen. This means that passing SOPA would be, itself, a crime, at least in my interpretation.”

If you argue that there is no power to regulate interstate commerce in the modern sense, obviously this follows. However, you are factually wrong, as current interpretations of the Constitutional allowances on interstate commerce clearly allow regulation of the Internet. Again, this is not to mention the Constitutional allowances for copyright enforcement. At which point, free speech is a much less clear argument, as it clashes with other provisions in the Constitution. In these cases, it is up to the judicial system to decide where that blurry line is.

The argument being made for SOPA, not that I agree with it, is that piracy is harmful to the creators of Art, much like the panic would be harmful to the people within a theater.

“It is also quite different from the result after "years of jurisprudence" and precedent, which, like I pointed out in my original post, suffer from the intrinsic corruption endemic to government.”

There it is again.

(a) The Constitution does not stand alone. It stood alone for as long as it took to people to start interpreting it in court. The very fact that the meaning of the document has evolved makes it obvious that despite how readable and explicit it may seem to be, there are many nuances to be found.

(b) It is not 1787. It will never be 1787 again. Things change. The Constitution has some great concepts that we have moved away from and should perhaps move back towards, and it has some really shitty concepts that we tossed by the wayside, and good riddance. But to hold it up as a golden example of everything that was ever right with this country, and state repeatedly that if we only returned to its silken word everything would be glorious once more, is... Just incredibly frustrating.

"The tree of liberty must be renewed from time to time by the blood of patriots and tyrants, it is its natural manure."

We do need periodic reminders that Thomas Jefferson could be a total nutcase, so thanks for that. The fact that he spoke the words doesn't make them scripture (and yes, I am getting more sarcastic as the arguments turn more religious).

“Hierarchy simply means an arrangement between people with division of roles. Corporations are hierarchies but they are not governments.”

Corporations only have no consequence if you can find another job once you leave. Arguably the current recession is an excellent example of a place where, for many people, corporations are like government, insofar that you have a choice of working for the corporation, or starving. Except you won't starve, because the government will provide some modest attempt at letting you survive.

That said, you bring up governments and their imposition via violence. Yes. As it turns out, a hierarchy is meaningless if there is no enforcement of the decisions made higher up. In the case of government, your recourse is to leave your country and its government and go elsewhere. Especially as a US citizen, that is easier for you than it is for other people.

I do want to see the examples you have of sustained, government-less establishments. I suspect that it will reveal more about what you define as government than it will new insight on the human condition.

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All of this said, by the way, I don't necessarily think SOPA is Constitutional. It seems like it may very well not be (or perhaps more accurately should not be), and I don't like it one bit. But your dogmatic interpretation of the Constitution, and your lack of acknowledgement of the entire judicial infrastructure that keeps it functioning and evolving, is just as harrowing.

The quote is more reasonable in context: http://www.theatlantic.com/past/docs/issues/96oct/obrien/blo...

He's referring to this: http://en.wikipedia.org/wiki/Shays_Rebellion

"Your love of the Constitution..."

You're attacking a strawman. I do not love the constitution. I consider it a complete failure, and I would think this should be obvious to anyone who reads my words carefully. Further, in both of your responses you have failed to bring any evidence, logic, reason, or more importantly, law, to bear against my case. Your position is an ideological one, which is probably the reason you feel comfortable being sarcastic, calling arguments based in law "religious" and referring to people as "nutcase", etc. You don't need me for that, so I'm bowing out.

I've enjoyed your comments in the past and am (surprisingly) enjoying the heck out of this particular argument between you and Antonio Salazar Cardozo.

But.

I think you have to question whether you're on sure footing when your argument requires you to relitigate Marbury vs. Madison.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

--- 8< ---

You can't look at the Constitution and declare that, for instance, Congress has no power to "regulate", as that isn't one of its enumerated powers. The authority to do that is vested with the Supreme Court. The track record of your underlying argument --- that Congress should keep its hands off X or Y or Z, because it has no enumerated power to tamper with it --- is not encouraging.

Great points! Also:

1) the Commerce Clause has broad, powerful language. It was interpreted in its broad sense only a few decades after the Constitution was ratified, both by the court and the first few Congresses.

2) the framers, at least many of them, did intend this broad reading. They intended to have a national government with broad power to regulate commerce, as a response to the articles of confederation. This "camp" won not only at the drafting stage, but in the few decades after as it was interpreted.

3) a reading of the First Amendment incompatible with other clauses of the constitution, and the common law incorporated by reference is purely non-sensical. The framers knew what patents and copyrights were-the first Copyright Act was passed in 1790.

SOPA is a stupid law, but in broad terms it's within the heart of Congress's enumated power: the power to regulate the interstate flow of property created directly pursuant to a constitutional provision.

Maybury v. Madison is one of the key examples for my position[1], 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.[2] So, no the constitution doesn't vest that authority with the supreme court. Unless I'm mistaken, all the constitution says is that the supreme court shall be the highest court in the land.

Regarding the track record of my argument, I will not disagree, it is not encouraging.

If it were encouraging, I might believe that a just government were possible.

Unfortunately the track record you point out only serves to confirm the theoretical argument that I've been slightly making, which could be:

tl;dr: Power corrupts, and the corrupt seek government power.

[1] It should also be noted that in this ruling ,the Supreme Court also rightly ruled that any law passed that was in violation of the constitution was null and void the moment it was passed, and it did not need the supreme court to rule as such for it to be null and void. Further, they are correct that when two "laws" are in conflict it is right for them to judge which one holds, their key error is in thinking that one of the laws they can decide to very rule is the constitution.

[2] I'm open to quotes from the constitution itself, or the framers that disagree with this perspective, but I'm not likely to debate it much further.

At the end of the day, most people have this perception that the supreme court is "naturally" or "rightfully" the decider of whether things are constitutional or not, and my opponent above seems to think that the documents meaning can change over time. I can't dissuade people of that belief... but I can only point out that if that is the case, the inevitable result is eventually tyranny. -----

Consider this. How can any law, morally, that is not enumerated in the constitution as a power granted to the federal government, even if passed by the congress unanimously, signed by the president, and upheld by the supreme court as "constitutional"-- be legitimate?

The very existence of these institutions is created by the constitution.

They must rely on the constitution to claim any legitimacy at all.

Thus it matters not, logically, even if all three of them agree to do something, if that something is not authorized by the constitution, its not authorized at all.

I know this is essentially irrelevant because all three have simply chosen to ignore the constitution for the most part.

I just want to address the theoretical argument that the supreme court, or any of the other branches, or all three together, can decide to ignore the constitution and have any legitimacy.

You understand of course that it's awfully hard to have a discussion about Constitutional Law with someone who rejects most of its concepts from first principles. You, for instance, seem to literally reject outright the concept of judicial review, despite the fact that judicial review is a process that was established during the time of the founding fathers, indeed in a dispute between Adams and Jefferson.

I respect your strong feelings on this matter, but you aren't arguing from US jurisprudence at all.

Now, that's quite unfair. Why did you go from arguing the point to characterizing me? It is false to claim I reject judicial review, I have never done so, and courts reviewing laws is one of the legitimate powers granted to them. Are you unable to distinguish between courts holding laws to be in conflict or unconstitutional, and courts deciding that the constitution is subservient to their opinion? In one they are taking the powers granted to them and exercising them, in the other, they are deciding that they are the supreme power, a clear usurpation. Even if you have trouble making this distinction yourself, or disagree with my perspective, it must be obvious that I do, and thus the characterization is quite unfair.

It's also unfair to say I'm not "arguing from US jurisprudence at all", because essentially you're saying "I'm not arguing without already conceding that the constitution is meaningless.", only you're putting it in terms that imply I'm being unreasonable.

Actually, I'll take that as concession of my points in full.

The constitution says what it says. IF you don't like it, or the government doesn't like it, it has provisions for how to amend it.

Ignoring it is something they cannot do, because when they do that, they lose authorization under it.

This is quite logical, and I think irrefutable.

Anyway, I understand your general line of attack, I don't find it compelling and feel that I've already refuted it... and comments on HN often go off into the weeds so, I'm done.

Good day!

Just to be clear: you reject the concept of judicial review, and believe Marbury v Madison is a "usurpation".

Marbury v Madison didn't come out of left field. Hamilton presaged it in the Federalist Papers, explaining not only that the judiciary under our constitution is responsible for "interpreting" the law (his words), but that the gravity of that responsibility is one of the reasons they have permanent tenure, to keep them independent of the legislature.

Hamilton envisioned a government in which conflicts between the "people" (e.g. the Constitution) and the courts would be resolved simply by amending the Constitution. As could just as easily be done to, for instance, end all regulation and (one supposes) the 2-centuries-old concept of judicial review.

I understand what you're saying and agree that there's insufficient compatibility between our worldviews to productively argue about the Constitutionality of laws arising from conflicts between the explicitly enumerated concerns in the Constitution (here: the enumerated power of Congress to secure copyright, and the First Amendment).

Out of curiosity, by what process, in your view, is it supposed to be concluded whether a law passed is in violation of the constitution? You seem to reject the idea that this decision can be arbitrated at all. Is everyone just supposed to agree on this because it's obvious?

"The constitution is quite readable and quite explicit... It is also quite different from the result after 'years of jurisprudence' and precedent"

Yes, those years of jurisprudence and precedent which were produced by people who were taking cues from the same quite readable constitution.

All of whom are, of course, not only wrong but illegitimate, to the extent they don't read the constitution the way you and your favorite thinkers do.

"Governments impose their will on those who are subjugated by force, with violence. This is not the case with corporations, as employees, customers and owners of corporations all participate in the hierarchy on a voluntary basis."

Sure. The state is legitimized coercion, so if we can only get rid of it or limit it enough, there won't be any coercion!

You seem to think the constitution is a legislative document. This is not the case, at all. That's why it provides for courts and a legislature.

There are years of jurisprudence and years of common law precedent that form the true vision of what the First Amendment means today.

I always find this argument irritating. You don't need to be an attorney or a jurist to twist words around, postulate social contexts, and invent hidden meanings. The minute that society agrees that the phrase "Congress shall make no law" means something other than "Congress shall make no law," I'm as qualified as you are, or as qualified as the Chief Justice of the Supreme Court is, to decide what that phrase really means. At that point, we can no longer even pretend to be honoring the founders' intents, so we might as well go full retard.

I rather like the Bill of Rights the way it was written, but I would understand if the nation decided to hold serious discussions about if, and how, amendments such as the First, Second, Fourth, and Fifth should be modified and adapted to better accommodate modern society's needs. Even though I might disagree with the outcome, I still think it would be better if we reviewed the Constitution regularly and changed it where we felt it was necessary, than to continue paying lip service to the entire document and the intent behind it while ignoring both at will.

Serious discussion of revisions feels like a core part of jurisprudence.

What if constitutional language-seeking behavior were more human, and evolved with us?

It is philosophical, but psychologically healthy to recognize what needs governing now. Is a government contextually present more able to fit reality?

If no question is stupid. "A wise man can learn more from a foolish question than a fool can learn from a wise answer."..... Why is it felt governing and law is unquestionable? Sometimes our definition of stable is wrought?

A different angle, in same direction. Better constituting our futures is important.

The question isn't so much about whether you're as qualified as the courts to interpret the Constitution, but rather that particular debates have been litigated already and a particular interpretation chosen.