[dvd-discuss] Congress could not diminish constitutional rights ...

[Claus Fischer <claus.fischer(at)clausfischer.com>]

Andy Oram cites the 2nd court of appeals:

"Congress could not 'diminish' constitutional
rights of free speech even if it wished to."

Yes it can. That the constitution bars Congress from doing so
does not mean it cannot; it means it's not allowed to.

I can very well grab a knife and kill a person. But I'm not
allowed to.

The argumentation of the courts is very dangerous. It turns
"Congress shall make no law ..." into something very vague. It
exempts Congress from the responsibility to not make such a
law, AND it exempts the court from the responsibility to test
the law against the constitution.  It says, "If Congress wants
to make such a law, just let them go ahead, it doesn't apply."
[Cynically, only to apply the very same law a moment later.]

It is dangerous to not deal with bad laws at the root, which is
what the framers of the Constitution apparently foresaw.


So, here's the vicious circle:

Congress shifts the responsibility of making sure that the law
is constitutional to the courts, to avoid looking careless and
imprudent.

The courts take a laugh, say that the law cannot be in conflict
with the constitution since Congress does not have the power to
enact such a law, ignore the conflict and apply the law.

Defendents are left in the rain.

-- 
Claus Fischer <claus.fischer@clausfischer.com>
http://www.clausfischer.com/