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

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

Thus Spake claus.fischer@clausfischer.com:

>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.

I think that just about sums it up....

In reviewing of the laws passed by Congress these days, I get the notion 
that the lawmakers approach to making laws is to let the lobbyists tell 
them what they want, throw a bunch of nice words together, give it a nice 
sounding name (e.g.,Patriot Act. Clean Up the Internet to Protect our 
Children from Pornography Act (CUT IT POC FPA))), compromise a bunch of 
stuff, pass it with last minute changes and addons (e.g., the RIAA getting 
songwriters reclassifed as work for hire employees) and THEN let the 
courts sort it all out. 

Everybody knows that TRAFFIKING is a bad thing to do. So is CIRCUMVENTION. 
So....TRAFFIKING in CIRCUMVENTION must be a really bad thing to do - So 
let's put it in the law that it's illegal. Never mind the fact that WE the 
People don't have a clue what that means and I'll even give poor Judge 
Kaplan the credit that HE didn't know what that meant either and went with 
his bias of protecting the sancity of intellectual property form those 
hoards of pillaging hackers.




Claus Fischer <claus.fischer@clausfischer.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
01/17/02 04:28 PM
Please respond to dvd-discuss

 
        To:     dvd-discuss@eon.law.harvard.edu
        cc:     andyo@oreilly.com
        Subject:        [dvd-discuss] Congress could not diminish constitutional rights ...


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/