Updates for Monday, July 4th [2005]

Blawg Review #13


Dear Blawg readers & patrons,

I have recently received the favors of the gentlemen of Blawg Review, requests fitting for my scholarship for my appraisal in the attention to legal matters discussed on this thing called the "blogosphere", on this national Independence Day. As a former president of the United States, a proficient & endearing student of law, practicing lawyer (I did pass my first county court bar exam some 236 years ago, so forgive me if my legal expertise is somewhat outdated), and the principle architect of our government, my perspective has become of interest to some, as much perhaps that the opinion of today's many lawyers, legislatures and courts is of interest to me. This brings me into the harmony today's events, on the dawn of this July 4th.

Ever since my arrival in this strange and wondrous part of the American future, or rather, the American "present", I have been on an ongoing inquiry into the very nature of modern law and government. So injudicious the unscrupulous acts of legislature I have seen, and apathetic the American mind has grown to these matters, that I have been prone to action that I might record and observe what I can, and today is an excellent opportunity to do just that. So I have been asked to offer my review and commentary on these various internet weblogs, writings, essays and other posts. I was fearful that my opinion and analysis of recent history would be ignorant of the many changes since my time, so I have invited my roommate Daniel to join my commentary... who, I am afraid, was slightly bored with all the dense legal issues, so I fear his commentary may be a bit... amiss.

First we look at Howard Bashman's concise and fair log of important legal matters of the day, "How Appealing".

Me (Thomas Jefferson): So, Daniel, this is a rather easy to read website, very concise news source for the legally minded.

Daniel: You're right Tommy-boy, not that I care much about law. All I gotta say is that you know everything's all good when you see mention of lesbians!

Me: You're lacking focus here my dear friend, but this is indeed a quandary. According to Bashman's synopsis, the West Virginia Supreme Court gave a lesbian partner of a deceased woman custody of her 5-year old child.

Daniel: I don't see anything wrong with that.

Me: It's certainly not something I'm used to Virginians discussing. In fact, in all my times I've never heard of something so... unusual. A woman wants to raise a child for her woman lover?

Daniel: Holy crap, you mean you don't have an opinion on this one? You have an opinion on everything!

Me: Daniel, I do side with your sentiment, and the court's. Someone must raise the child and it is not a child properly in the state's ward, so long that is as the surrogate mother has the means to do so in custom. It's just so... pardon the expression, odd.

Daniel: Look at this update Thomas, neocon wackos and their Ten Commandments.

Me: The radical and self-proclaimed piety of the judges certainly hasn't waned in the least over these many years, and they still insist that the Ten Commandments are the proper source of common law, where it cannot be. The Saxon kings which common law was derived were pagans at the time, so certainly erecting the Ten Commandments makes as little sense as erecting Philosophiae Naturalis Principia Mathematica beside it, despite the latter being a greater source of wisdom and reason. If the park is paid for by the city, then I cannot see how it is more appropriate to erect the Ten Commandments, than it is to erect a Christian church, or a pagan temple... and are these Constitutional in aim or in spirit? I think not, and to say it is "secular" in nature is simply to beguile the real discussion, and irregardless of the many questions people have, I think the issue is simply that obvious.

Daniel: All I gotta say is that I thought this dude has the right idea. Hey, scroll up a little, what do you think of Bashman's link here to an LA Times article, "What Became of Federalism?"

Me: Federalism is something of a misused idea, many of the Founders intended not for Federalism or Antifederalism but for as much self-government as possible, I knew this was in the heart of George Washington especially. The Federal government certainly seized far too much power from the individual states, and the states too much from the people. I believe in a way that it wouldn't be much different if the Democrat gentlemen John Kerry had won the administration, as this problem has seated itself deeply for quite some time now, to a point where Americans have become altogether complacent to the furthered cessations of state authority to the Federal government.

Norm Pattis at "Crime and Federalism" has an interesting opinion of serial killers and their victims crossing the State lines.

Daniel: I really don't care about the death penalty. My buddy, James, keeps telling me it's barbaric. I kinda don't have an opinion.

Me: Listen my friend, there are many lessons of merit and one is this: Society has a right to erase from the roll of its members any one who rendered his own existence inconsistent with theirs; to withdraw from him the protection of their laws, and to remove him from among them by exile, or even by death if necessary. The felon Donald Fell may perhaps warrant the extra effort, from the descriptions of his acts I have seen reported, and his guilt acknowledged.

Daniel: Wow, dude, that's pretty cold. I wasn't expecting that from you.

Me: It's an opinion I've always had, but only with the greatest caution.

The Monday News Roundup at the "American Constitution Society Blog" also piqued our interest...

Daniel: Let me read this update here, *ahem*, "Speaking at the American University of Cairo, Condoleezza Rice slammed Saudi Arabia and Egypt for their records on political rights, 'For 60 years, my country, the United States, pursued stability at the expense of democracy in this region here in the Middle East, and we achieved neither. Now we are taking a different course. We are supporting the democratic aspirations of all people.'"

Me: Was that a measure of sarcasm?

Daniel: Well, you know Condoleezza, it's always senseless babble with her.

Me: I hold high spirits for the sentiment of Miss Rice, however what I don't understand is what she means by "taking a different course". The course hasn't changed much in my opinion, the administrations seem to be repeating the same courses of action. Likewise, I feel the doctrine of spreading universal democracy to the many hostile & barbaric nations of the world may itself be felo de se.

Daniel: I'd agree with you if I knew what the heck you just said.

Colin Samuels at "Infamy or Praise" seems more concerned with his privacy than anonymity, and so is John Smith at "PatriotWatch.org".

Me: Mr. Samuels certainly makes the issue of anonymity an impossibility, and perhaps he is right, true anonymity is a futile effort in today's world. Likewise, privacy & the "right" to it is likewise a futile debate. While it is definitely concerning to see the activities of the government increase, its capacity to use that knowledge against its citizens is limited by its own incompetence and incapacity to rule the full body of the information before them. The human world of today, the technological marvel, is to incredibly vast, and while privacy is quite a bit harder than in colonial times, privacy in the sheer overflow of information is also an inevitability: no single human mind or set of them could ever chronicle everything you or anyone else do. Some things, as I learned firsthand in coming here, will always be lost to history, and are inevitably, immutably, private. Our level of ease about privacy perhaps should rest less on fake promises of our "rights" to it, and instead our protections against the government's most obtrusive invasions of power of force over our property, life and liberty. A "real" ID card seems like a mere formality after seeing the cataloguing of these ID's the States offer. I can't help but feel the plight of the anonymous and private people is a lost paranoia to the plight of the many that are literally brutally oppressed everyday. We all do need some privacy, and it's still possible for a reasonable person to have it, following obvious rule: things that require others will never be totally private pending their trust, and such is the logical absurdity of mandating degrees of privacy. Mandating privacy is as pointless as fighting the loss of anonymity, as the human capacity to observe means little more than as time passes, our capacity for truth grows greater... sooner to fight over something more important, battles not already lost to technology and time.

Daniel: I heard Ralph Nader say they were going to put bar codes on our foreheads!

Me: Daniel... nevermind.

Jon, a lawyer who writes at "Outside the Whale", has some thoughts on bringing back the old Democratic narratives.

Daniel: I think he's right. I think Democrats really should go back to their roots, FDR, Truman, Wilson, JFK... they need the benevolent impression of the New Deal once again.

Me: It seems to me that the names you listed were the ones who made our government the "litany" of policies, the "alphabet soup", and contributed to it being the total despondent mess that is the problem now... so to go back to that old narrative is simply to make the problems today even worse. Perhaps the solution is to go back to an even older party narrative.

Professor David N. Mayer, who gives seminars in American Constitutional History and in Libertarianism and the Law in the Law School at Capital University in Colombus, Ohio, writes about "The Legacy of Watergate".

Me: I find these words of wisdom quite worthy of additional mention: "The real legacy of the Watergate affair is the proof it provided of the truth of Lord Acton's famous maxim, 'Power corrupts, and absolute power corrupts absolutely.' The lesson to be drawn from this truth is the need for Americans to be ever-vigilant in defense of their liberties - and always skeptical of government and of the individuals whom they have entrusted with political power. The more power we cede to politicians, the more likely they are to abuse it: that's a truth rooted in the realities of human nature."

Daniel: Nixon's dead and he's still a prick. Hey Tommy, here are some words of wisdom that Prof. Mayer quotes, check it near the bottom: "In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." I bet you'll NEVER guess who said that.

Me: You know, I feel the wisdom of my words there is missed on the minds of many. Many of those resolutions in Kentucky from which the words come don't mean anything these days, the Patriot act certainly makes the Alien and Seditions Acts of 1798 seem fairly obsolete. It is nice to know some Presidents can't get away with anything, even if that is just a simple burglary.

Daniel: Here is something you might want to check out, Prof. Mayer here says America isn't a Democracy. What's up with that?

Me: Well, he's right. If the monarchy is the total rule of one over all, and the oligarchy is the total rule of the few over the many, then the democracy is merely the total rule of the many over the few. None of these situations are tenable for liberty, which is why we have the republic, which can limit any member of government, no matter the numbers supporting them, from exercising total rule over anyone.

Daniel: Oh. For some reason I just got really bored listening to you.

Me: *sigh*

Government lawyer and anonymous "car pundit" discusses the Flag Protection Amendment.

Me: I grieve at the downward and calamitous actions at those so unprincipled and indignant toward the cause of human liberty as to do something so petty and cruel as to destroy the symbolism of this great nation.

Daniel: Hey dude, it's just a piece of cloth, why can't people burn it?

Me: A cloth? It is a symbol. A symbol that has protected many, on the dangerous high seas it's saved the lives of many a sea-farer. On the shores it inspired a nation born. Why would someone ever want to burn it?

Daniel: I don't know, maybe cause they're mad with the government?

Me: Then embrace it, as a symbol of the liberty that is being fought for. Don't disgrace the memory of the long-since dead, so rudely and so abruptly as to forget the intentions it bears.

Daniel: So you're saying you disagree with this guy, and think flag burning should be illegal?

Me: Illegal? I never said that.

Daniel: Well, you flipped out...

Me: Of course I did, I haven't ever heard of something more offensive to the human spirit and the foundation for liberty than to burn the American flag. However, that doesn't mean I believe it should be illegal. The entire thought of it makes me far too angry.

Daniel: Okay dude, chill. Get back on point here, we're having a discussion. I'm not the one burning any flags.

Me: I do apologize... yes, I stray from my point. As for its legality, well, whose flag is it?

Daniel: Huh? What does that have to do with it? It's the protestor's flag, I imagine.

Me: Common sense dictates it's the protestor's right to do with it as he will, if he owns it, no matter how disgusting, stupid or incomprehensible as it might be. He is violating no one's rights.

Daniel: See? Burning flags is okay. I told you so, why I saw James doing that at the last protest, after you left of course...

Me: I didn't say "okay". I just said "legal". Never be confused that something that is "legal" is "okay", that is a central confusion towards the purpose of law. It's still offensive to my very spirit to even hear that it is popular to burn the flag in protest, nothing can hide my indignation and contempt for such ill-minded foolishness. If you truly reject the government today, then hold the flag up proud as a symbol of what the nation was meant to be. Don't desecrate it, and embrace the anarchy and tyranny such destructive symbolism represents. I can think of no one besides King George the Third who would've burned our flag, in my day. Remember that.

Timothy Sandefur, guest-blogging at "Crime and Federalism", is upset with the landmark decision of the Supreme Court in Kelo v. New London. Glenn Reynolds at Instapundit also has reaction, and points to an article by Professor Bainbridge at TechCentralStation. Professor Eugene Volokh has more on the Kelo decision at "The Volokh Conspiracy". Even the Supreme Court of the United States Blog has an entire category dedicated to the decision. With so much discussion, we felt it important to take a look...

Daniel: So, if city hall wanted to bulldoze our apartment to build a Wal-mart, they could?

Me: I kept telling Congress to let us mention that the King of Great Britain "incited treasonable insurrections of our fellow-citizens, with the allurements of forfeiture & confiscation of our property", that it might be important to keep that part in the Declaration, and after reading this I regret not pushing harder to keep it included.

Daniel: Oh, this whole thing reminds me of a crazy video I saw sometime last year. It was the dopeness! This dude got his land stolen by city zoners, so he snapped and built a giant mega-dozer that he used to crush city hall and the mayor's house, to strike a bit of fear back into the city.

Me: A little rebellion now and then is a good thing. After all, what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? What ever happened to the man?

Daniel: Well, unfortunately he flipped out and killed himself before they could reach him inside his super wrecking machine, it was outfitted with concrete, steel and some messed up stuff like kryptonite or somethin'... Superman couldn't break his way into that one.

Me: A sore pity that such patriotism had to end in bloodshed, and an even sorer pity that mere mayors and members of city halls think they are Kings of the territory they oversee. On that note, very wise words were said by this Joseph Story whom Prof. Reynolds cites, from 1833 collected from the works of "Commentaries on the Constitution 3", in which Mr. Story says: "It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint." Mr. Story has a very active understanding of how it was interpreted in my time to work, then again, 1833 almost was my time. With the judiciary so blatantly abusing its authority, it's surprising that more people don't rise up in protest. In my time if a judge made a decision like this, the entire countryside would revolt.

Daniel: Well, you know, times have changed.

Me: That they have. Here, the Professor Volokh seems to raise many issues with the critics of the Kelo decision. It seems he believes that "public use" in the 5th Amendment can mean anything that perceivably is "public" to the courtrooms, and not instead, "public" as in a government venture. Thus, he attacks critics of the decision by claiming "public" can and should mean anything that is perceived to aid the general citizenry in any way... an idea he says is aligned with pro-market sentiment. I find that idea to be deeply offensive to the free market and fully contrary to it. Such a justification for this ruling could be taken to mean anything, and I believe I have a good answer to this: it is clear that no enumeration of the Constitution shall be construed to deny the rights retained by the people not already explicitly given to the Congress or government in general. Enumerating "public use" to mean anything to allow the government to seize whatever land and facility it wants without even a simple pretext by which it must justify it's forfeiture, is boldly ignoring the purpose of the Constitution's role in this matter. Likewise that the 5th Amendment merely passively suggests a power to seize land does not make it so, as the amendment's purpose was not to define new powers to give to government, but to provide explicit language forbidding existing powers of government from being abused. Furthermore, such an opinion ignores many of the intents behind such a passage. George Mason, an amiable fellow who wrote the very foundation for the Bill of Rights, the Virginia Declaration of Rights, explains in his equivocal passage (Article VI) that the power to take for the "public good" is entirely based on the consent of those citizens involved, through either representatives or direct personal representation. So what happens when the elected representation is in conflict with the individual's consent? According to Article I of the same document, you would find that all power of representatives are dwelled from the people, and that if the people have not specifically assented to that authority, be it not in the Constitution a specific clause to do what is said to be being done, then that consent should never be considered given. The people's consent to such action is foremost required, at all times, even those frustrating to legislators and city planners, in fact, especially when they frustrate legislators and city planners. In the Kelo ruling there is no respect for a man's consent, all in the name of a political interest to build a shopping mall for someone else's benefit. Sometimes I think James Madison was right to suspect the Bill of Rights would only add more confusion, and thus, more problems, for its interpretation here is the source of this confusion... a confusion which is dangerous to the American who cares about the respect all government should have for his inalienable rights, and the inalienable rights of others.

Lawyer and Washington powerbroker Vernon Jordan is blogging on "The Huffington Post" about the conviction of Edgar Ray Killen for the brutal murders of three civil rights workers on the 41st anniversary of their deaths at the hands of the KKK. Vernon Jordan is a close friend and advisor to William Jefferson Clinton, a former President with a great name, who would be well-advised to start a blog on this website.

Daniel: The KKK was pretty terrifying back in the day, it's a good thing you missed all that. They were killing black people and intimidating the masses into segregated America for years.

Me: Well, some would view me as a racist, and they have every right to. However, I was never in favor of the separation of races, it was an inevitability of my time and the people then who would not accept any provisions - either ones I suggested or otherwise - to free the negro race. Freeing men who had no education into a world of bigoted men, who held for the longest of times the ideas that I myself was wishful in doubting, would have been irresponsible and I stay toward that course.

Daniel: That's still no excuse. But what about this KKK member being sentenced after a whole 41 years?

Me: Sounds like the justice that should have been served long ago, many times over, was served finally. I am glad to see the doubts of my life countered by the progression of modern culture. I think many blacks and whites from the days of colonial America would be proud with how you have resolved your differences.

Daniel: Yeah, that's coming from a friggen' slave owner.

Me: These words from Mr. Jordan echo fairly true about the situation, "it demonstrates that the South in general and Mississippi in particular are no longer places where racists can get a free pass for their atrocities. What happened today was a kind of justice very different from historic Southern and Mississippi injustice. While it cannot restore Michael Schwerner, James Earl Chaney, and Andrew Goodman to the lives so viciously taken from them in their youth, it has redeemed to an extent the honor of the region, the political courage of its leaders, and the integrity of its justice system."

Howard Friedman at "Religion Clause" posts about seeking the use of the Koran in courtroom cases involving Muslims.

Daniel: I think it's unfair that we always shove the Bible down everyone's throat. I think the court should be required to make people of other faiths swear on their own faith's Bible.

Me: Why is anyone in the courtroom swearing oaths on any Bible?

Daniel: You know, "To tell the truth, the whole truth, and nothing but the truth so help you god?", I saw it on Matlock once.

Me: We need not oaths, but affirmations and affidavits. I do not care in a courtroom that a man swears by his god, what if he worships a deceitful god? I care mainly that he swears by the truth, and nothing else is of significance. When people ask what favors and privileges government grants us, be it what books we swear by or what Gods we can worship, we should stand up and boldly proclaim that our government gives us inalienable freedoms and rights, not to be determined by legislature or institutionalized by the state, which must always in every way be kept separate from the body of our government. To swear by your god is something you are free to do, it is not and could not be a mandatory requirement that anyone can impose on you, and it is futile to try.

The The Commons Blog has many fruitful looks at the oft-neglected ecological side of free market economics.

Me: Why, that bridge looks familiar, I used to have one just like it - indeed the best 20 shillings I ever spent. If it is still in that condition today, the caretakers surely have worked miracles.

Daniel: This is crap. Loggers preserve forests better? Recycling as a bogus myth? Nasty ass genetically modified foods as important agricultural resources? Give me a break.

Me: Daniel, this is certainly a tragedy of the commons, to expect that politicians and rulers are the only solution to every concern, even those of the environment. The best hands in the environment are those who love to culture and till the soil, to bear with their own hands the lives of plush trees and brush, someone who is fascinated by every sprig of grass that ever did grow. I certainly would not trust the common lands of America to someone who does not feel this way; nor have I ever seen a politician elected for having sincerely felt this way.

Daniel: What do you think of urban sprawl?

Me: I know that I once thought our governments will remain virtuous for many centuries; as long as there shall be vacant lands in any part of America. Today, piled up in large cities, they have become corrupt as in Europe. The urban regulators merely make the problem worse by forcing the city to sprawl outward instead of inward, by prohibiting the new establishments and buildings of great architecture, except in expensive redevelopment plans. Cities will only grow to eclipse the countryside so long as it is illegal for many men to develop within, then every-where will be a city, and every-where corrupt as Europe.

Daniel: So, is that it for this site? How many of these freaking things are we going to review, anyways?

Me: As many as it takes, and no, one more article catches my eye here, "The Commerce Clause, Wetlands, and Navigable Waters". The commerce clause? Is this in reference to our Constitution? If it is, then this is a dangerous application. One might even assume, taken in this context, that such a simple passage would give Congress the right to regulate almost anything. I remember a case Gibbons vs. Ogden, it was probably in 1824, fairly fresh in my memory. In it, New York tried to monopolize a steam boat trade, maintaining that New York could pass the regulation on the waters that would prevent New Jersey from doing fair trade... the Supreme Court disagreed. I don't believe that disagreement is in the spirit with what we see today, where the Congress is monopolizing and establishing many federal businesses and controlling many state ones, in the name of a clause that was once used to prevent such occurrences.

Daniel: Fas... cin... ating. *yawn*

Professor Daniel Solave at "Prawfsblawg" is concerned about the Department of Defense's new databases...

Me: So, what is a database exactly?

Daniel: It's a place in a computer where you can store massive amounts of information, and search and categorize it all digitally.

Me: So it's a concern that the government collects this information?

Daniel: Well, I don't know. I know I don't really care.

Me: Why is that?

Daniel: Because no one I've ever known in government is smart enough to use any part of the massive amount of data it brings in. It's too much to practically use, and the government is too stupid to effectively use it. Plus... most of the time it's merely a collection of information from other parts of government. I don't know, it worries some who are concerned about privacy, but me? If they wanna keep a catalogue of all the games of Halo 2 I played in the last week, all they have to do is log on Bungie.net and take a look for themselves. Most of the info they want is public to begin with, and the stuff that's not... well, I just don't care.

Me: Gathering information certainly isn't illegal or unconstitutional, but when you go to too many lengths to do it, it can come close. Perhaps what is the most concerning thing about it is that no one really has a reason for all the data they collect... and that most certainly is cause for concern. Interest without reason must mean a disguised agenda is at hand. Then again, maybe you are right: maybe the governments own incompetence protects most of us from its capacity for abuse & excess.

Walter Olson brings up something that peaks my interest, Great Britain tobacco litigation at "OverLawyered.com". We also find another post of interest there, on Indian land claims.

Daniel: Isn't it the United Kingdom now, and not Great Britain?

Me: Seems like the same thing to me.

Daniel: I think the tobacco companies should be liable for deaths from their products.

Me: I think tobacco companies should be liable for fraud, however, tobacco is deadly?

Daniel: Yeah, duh, it causes lung cancer. Don't you know that?

Me: No, I actually didn't.

Daniel: So if you are making money off killing people with deadly drugs, and you know it's deadly but you don't say anything, shouldn't you be able to be sued for it? I think anybody who grows tobacco should be thrown in jail.

Me: Uhm, I used to grow tobacco.

Daniel: AND you owned slaves. Man, how wrong are you?

Me: ...

Daniel: Sorry, I'm just giving you a hard time.

Me: I don't think mere ignorance of the effects of tobacco can be cause for suit, however if there was intended deceit, knowingly false testimony of its health being made to the customer, then that is a fraud perpetrated on them. However, if you can attest to its health then surely its health must now be common knowledge, and therefore users of tobacco products today have no recourse but their own negligence towards their health. A tobacco sower who tends to fields for the momentary delight of a man is not guiltier than the butcher or baker who makes the men fat with food, or the brewer who makes the men drunkards. The vices of some are not the responsibilities of the many. Lawsuits would disastrously ruin the face of agriculture, making the diverse crops that enrich people's lives fewer and farther between.

Daniel: You ever smoke tobacco?

Me: No, wouldn't touch the stuff.

Daniel: Here's something else, what do you think about the Indian land claim petition being turned down?

Me: The Indian land claims were something I longed to understand better. The Indian people were people I admired however as the nation expanded there simply was no room for their unorganized tribal governments. I had hoped in their quest for something better they would have tribal lands, but as I understand it now, Indian reservations are hardly the contemporary second statehood, but instead a dependency of the United States. I think we should accept the ruling as the premise of tribal lands and their special privileges is confusing to most, it would be best now to make the entire mass the private property of the tenants and leave it at that, to its forgotten past. It is a pity to see such an honorable people doing something as detestable as gambling, for our instincts have so truly corrupted them.

Jeremy Blachman talks about the Boston Tea Party on his blog.

Me: Samuel Adams told me a tale similar to this story, although he was, by all accounts, drunk at the time.

Mr. Craig Williams wonders if the law offices of "Cadwalder, Wickersham and Taft's" efforts to stay in downtown New York after the World Trade Center attacks is Patriotism or Capitalism?

Me: I once met a young man, named John Wells, which this story reminds me of. He was an orphan in the state of New York who became learned in law and prominent there, in fact near the same locality, lower Manhattan. He was dedicated to the state and New York city... so much so that he became rather rich. In all his days he never abandoned the state that raised him, and even formed a strong partnership with George Washington Strong to make one of the biggest maritime & commercial claims law firms in all of the United States. This man was definitely an example of a patriot who existed as an orphan of capitalism. I wonder what ever became of him... ?

Daniel: Never know, maybe his law firm is still around somewhere in lower Manhattan?

Me: I'm sure that it most certainly is.

The Goddess speaks on whether the pursuit of happiness is self-defeating...

Me: When I think of the pursuit of happiness, I think of the empty bustle of Paris, of one cher madame I once knew. For to what does the bustle of Paris tend for her? At eleven o'clock, it is day. The curtains are drawn. Propped on bolsters and pillows, and her head scratched into a little order, the bulletins of the sick are read, and the billets of the well. She writes her acquaintances, and receive the visits of others. If the morning is not very thronged, she is able to get out and hobble round the cage of the Palais royal; but she must hobble quickly, for the coeffeur's turn is come; and a tremendous turn it is! Happy, if he does not make her arrive when dinner is half over! The torpitude of digestion a little passed, she flutters half an hour through the streets, by way of paying visits, and then to the spectacles. These finished, another half hour is devoted to dodging in and out of the doors of her very sincere friends, and away to supper. After supper, cards; and after cards, bed; to rise at noon the next day, and to tread, like a mill horse, the same trodden circle over again. Thus the days of life are consumed, one by one, without an object beyond the present moment; ever flying from the ennui of that, yet carrying it with us; eternally in pursuit of happiness, which keeps eternally before us. If death or bankruptcy happen to trip us out of the circle, it is matter for the buz of the evening, and is completely forgotten by the next morning. In America, on the other hand, the fond cares for the children, the arrangements of the house, the improvements of the grounds, fill every moment with a healthy and an useful activity. Every exertion is encouraging, because to present amusement, it joins the promise of some future good. The intervals of leisure are filled by the society of real friends, whose affections are not thinned to cob-web, by being spread over a thousand objects. This is the picture, in the light it is presented to my mind; is it not still the same way today?

Daniel: Where or what is "Replevin" supposed to be, anyways?

File sharing has become an important cause for legal experts, especially in the case of Bit Torrent and Grokster. The Supreme Court of the United States Blog covers many fronts of the copyright war.

Daniel: I love Bit-Torrent, Grokster is kinda a lame program though.

Me: I'm afraid I don't understand the cause for concern, I remember sometime last year when I first found some of the world's most famed musicians on the internet, thanks to this "P2P". What is so wrong with this sharing?

Daniel: Well, there is a thing called the Digital Millennium Copyright Act that says makes illegal methods to circumvent copyright laws via computers. I know all about this, this is more or less just an extension of that whole argument.

Me: Copyrights are limited and temporary, so I can see why I suppose, but what is being copyrighted?

Daniel: Movies, TV shows, music, and books mostly.

Me: Well, surely the temporary copyright allows the original author limited ability to resell his work. But it cannot and should not patent his idea, or prevent others from distributing it into the whole of the human consciousness. After all, a copy is owned by the copier, for they took the effort to produce the copy. Free copies are not illegal, are they?

Daniel: Free copies are the kind they want rid of the most. It's to protect "intellectual property".

Me: I wish to see new inventions encouraged, and new entertainment provided, and our Constitution provides for temporary patents to encourage that by benefiting the original author, as motive for producing them in the first place. However, the permanent patent of ideas - lifelong copyright of intellectual properties - is an abomination to the Constitution. That intellectual "property" should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Intellectual properties then cannot, in nature, be a subject of real property. Society may give an exclusive right to the profits arising from these creations, as an encouragement to men to pursue those ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. The intellectual property used in this manner could prevent the useful inventions of some from ever becoming popular, making select few rich, who do not produce the true utility that enriches our lives. People film movies to sell them, but then determine themselves from letting others witness the copies they sell, or copies of copies, without their permission... once given, the property is then taken away. If the courts could have their way, they would have control over the mind of man to prevent it from memorizing that which is not bought and paid for, and then we would truly put a patent on ideas, such so deeply forgone from the purpose of such amusement, & their proper role in our lives. If the free circulation of copies you created is not legal, then neither is the free circulation of original property, for such is often indistinguishable in purpose & aim, often likewise, in origin.

Daniel: So there should be no copyrights?

Me: There is a right of anyone who owns a thing to create its copy, however there is a certain extent of fraud that someone can partake in if they begin to copy something they did not originally create. As such, the temporary cessation of the right to copy to the original author is a means by which this fraud can be prevented, the prevention of that fraud being the end. This fraud can only be said to happen in two instances: where there is something to be sold (the original work and its duplicities), and where that thing is being sold at a profit (the fuel of fraud). Where the thing in question is distributed free & where its duplicities are properly credited to the original author, then the protections no longer serve their just cause. Therefore even temporary suspension of the right to freely reproduce works is a detriment to the society that allows for it, & for that reason it should be considered part of fair use.

Daniel: Fair enough.

Professor Lawrence Solum's "Legal Theory Blog" discusses some history in a look at Slavery applied to the Takings Clause.

Daniel: You owned slaves, would you have given them their Constitutional dues?

Me: Slavery reparations in my time would have been a futile effort. People didn't respect the property rights of the negro people. There is no amount of payment that would have been worthwhile, it would have all been lost over time due to biased legislation and bigoted attitudes.

Daniel: You sure are high-minded for someone who was something of a bigot himself.

Me: If that's the criticism I'm due, then so be it. However, it seems now that there have been many generations since slaves were around, and reparation of slavery should be within the context of actual slaves. Many blacks today have mixed ancestry. Who do we give reparations to today? The point of this debate is futile, as there are no men alive who were once slaves. If it was that way in my time, and I was the single slaveholder, then perhaps it would've been easier to let the slaves free and have our government give them settlements for the laws that disenfranchised them so. This world is full of confusion, it's hard enough to bring in a little reason into it the way things are, complicating issues by arguing for slavery reparations over 100 years after slavery ended just makes the matter even more confusing.

Professor Bainbridge at his blog takes a look at NBC Nightly News host Brian Williams controversial comments about the founders.

Daniel: So, did the British really think you were terrorists?

Me: They most certainly did, however I fail to see what that has to do with Iranian hostage-taking thugs, they are not of the same kind of principled resistance that we were against the British. Their lot is a fearful and cowardly, without principles or a love of freedom, entirely worshipping a single vision of religious rule, tyrants in their own right. Comparison requires the comparing of causes, and the causes which compel me differ greatly from the Muslim raiders.

Daniel: What about this? Timothy McVeigh was found to wear a t-shirt with your words: "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." I believe I explained this to you before Thomas, the guy who did the Oklahoma City Bombing?

Me: Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add "within the limits of the law", because law is often but the tyrant's will, and always so when it violates the rights of the individual. However, one should always keep in mind that not all unobstructed action is according to those limits. Slaughtering children and innocent bystanders does not right the wrongs of the government, it merely emboldens the government to more wrongs. During the Revolution, our most gross excesses were driving off the loyalists & their families for their support of our enemy... we did not line them up for execution, behead them, or sink their roofs upon their heads. I never said, "The tree of liberty must be refreshed from time to time with the blood of martyrs and tyrants." or "The tree of liberty must be refreshed from time to time with the blood of lunatics and tyrants."... the defining act is patriotism & the principles required must become the important distinction in every case, especially those in which it is easiest to equate them, for those situations offer differ the greatest. I said earlier in our discussion that the man who bulldozed city hall was in line with the patriotic spirit, because his acts were of clear, defined principles, and damaged no-one besides himself and the property of the aggressors upon him. That spirit is what makes his act of "terrorism" differ from Iranian kidnappers and mad bombers. While I may feel differently of the situation than Professor Bainbridge, I did notice, and this may seem astray from the topic, that he has great taste in wine.

Supreme Court Justice Sandra Day O'Connor is retiring from the Supreme Court, creating an opening on the Supreme Court during a controversial time. The Supreme Court Nomination Blog makes an introspective look at her retirement, while "Underneath Their Robes" offers a more personal look, as legal experts of various backgrounds (like these ones) clamor in discussion of the upcoming nomination battle.

Daniel: Well, it's too bad, with her retiring that will surely mean that one of the Bush-appointed nominees will wind up in the office, and we all know Rehnquist is going wayside, so that makes two.

Me: That is in some measure of doubt, as it seems that majority support must be given in the Senate, which is still closely divided. When I was President, I appointed three Supreme Court justices, so I know the process is of some debate.

Daniel: I bet you never even seen a woman judge.

Me: To tell you the truth, the judges I appointed were all men, and I never considered a woman for the position. Perhaps the times have changed.

Daniel: If you could elect some nominees today, who would you take a look at?

Me: I know no one of personal accord close enough to trust with such a position, but I know that the person I look for would require an understanding that their position is on but one organ of the true body of government, and not to abuse it by ruling ridiculous absurdities, to not limit the freedoms people have or to create new powers for itself that it had not before. One of my greatest concerns is that today the Supreme Court sees itself as the ultimate arbiter of the Constitution, which is a great danger. The Constitution meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. I fear that this is the real reason the Supreme Court control is of such great controversy, because in it lays much power. I fear that power in the hands of men & the hands of women, for it corrupts and breeds despotism.

That ends my formal inquiry, so I leave you, readers & friends, on this day of Independence, with a dilemma. Written law is the salvation of modern civilization, but is the creation of such written laws truly the greatest of all moral pursuits? Surely, it is of great relevance to the lives of many, of all trades and livelihoods.

This indeed, is what I believe: a strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in legitimate danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means. The actions of many to write down the words that become law, especially in Declarations and Constitutions, will be forgotten if we ever forget the source of freedom, which stems from our action in defiance to the senseless laws of tyrants, and in our noble adherence and respect for the laws of civilized man.

Accept the many assurances of my respect and esteem.

- TH. Jefferson

Editor's Notes:

Welcome to the Thomas Jefferson LiveJournal's special July 4th Blawg Review edition. Many of you probably aren't familiar with "TeeJ", an ongoing web-based story that started back in September 2003. This fictional story takes place in the present, with Thomas Jefferson, our beloved founding father, traveling forward in time to the present from the year 1826 and starting his own letter-writing internet blog. In 1826 Jefferson was 83, however in our story Jefferson mysteriously de-aged from the accident, so while he has most of the recollections of his life, he is still young enough (around 30) to fully function in today's society. Today's update is #67, and if you are interested in the story you can easily start from the beginning!

The first thing you are probably thinking about all this is, "Is this what Thomas Jefferson really would have said?" Obviously no one knows what his exact words would be, but I've based much of the material in all of the Thomas Jefferson LiveJournal updates on a lengthy study of the thousands of letters Jefferson has written, even down to a point of attempting to preserve Jefferson's diction. I usually use my Editor's Notes to add my personal commentary to an entry and to cite a few resources that substantiate my interpretation of Jefferson (although many exist in the article itself), so here we go:

The first topic, the Virginia case with the lesbian mother taking custody of the child, really is a non-area for Thomas Jefferson. As opinionated and worldly as Jefferson was, he typically didn't understand women very well, as he only had one wife and little romance after she died. This is really evident in his generic, fatherly letters to his daughters and other female associates. Jefferson was an old age romantic - he probably never once gave a moment's pause to think about lesbianism.

Next we hit briefly on the Ten Commandments. As author of the Wall of Separation letter, Jefferson was the originator of the idea that state and God should be kept separate. Some disagree, citing his inclusion of the "creator" phrase in the Declaration as proof. When discussing the interpretation of passages, I think it's best to look at its roots:

We hold these truths to be self-evident, that all men are created equal & independent, that from that equal creation they derive they are endowed by their Creator with [inherent &] inalienable rights, that among [which] these are Life, Liberty and the pursuit of Happiness; - Thomas Jefferson, original draft, Declaration of Independence

As you can see, Jefferson's illustration of the source of rights - that they are "derived" from "equal creation" - is just that, an explanatory statement as to the source of rights. Whether or not this part of the statement is true or an endorsement of God is irrelevant if you plainly read it - what is relevant is that the resulting situation is that we each have "inalienable rights" that are "self-evident" (meaning they do not have to be argued), that these rights are above and beyond the scope of government - a fact of our existence. Plainly reading the Constitution you will find that government's duty is to protect those inalienable rights - not to protect the "creator", but instead the creator's product, our lives and rights. Government's actual duties have no tie to the passages "from that equal creation they derive/they are endowed by their Creator with", since no insistence of those two phrases actually directly state any principle that the new government has any religious authority to act on. As you will see later, I link to the actual Danbury Baptist letter and its reply to further bolster this point, both letters I recommend reading.

I quote Jefferson directly on the issue of the death penalty,

"Society [has] a right to erase from the roll of its members any one who rendered his own existence inconsistent with theirs; to withdraw from him the protection of their laws, and to remove him from among them by exile, or even by death if necessary." - Thomas Jefferson to L. H. Girardin, 1815

Jefferson also believed that rapists should be castrated, as seen in this quote (my bold),

"The fantastical idea of virtue and the public good being a sufficient security to the state against the commission of crimes,... was never mine. It is only the sanguinary hue of our penal laws which I meant to object to. Punishments I know are necessary, and I would provide them strict and inflexible, but proportioned to the crime. Death might be inflicted for murder and perhaps for treason, [but I] would take out of the description of treason all crimes which are not such in their nature. Rape, buggery, etc., punish by castration. All other crimes by working on high roads, rivers, gallies, etc., a certain time proportioned to the offence... Laws thus proportionate and mild should never be dispensed with. Let mercy be the character of the lawgiver, but let the judge be a mere machine. The mercies of the law will be dispensed equally and impartially to every description of men; those of the judge or of the executive power will be the eccentric impulses of whimsical, capricious designing man." --Thomas Jefferson to Edmund Pendleton, 1776

In Virginia he tried to pass a law recommending the death penalty be enacted, but only for murder and highly-limited forms of treason. These of course were only the most severe of penalties, Jefferson seemed to have a great deal of hesitation in actually implementing them. Some believe he had so much hesitation that if he were alive today he would definitely say "no" to the death penalty, but I have seen nothing to back up this assertion, as murderers and terrorists would still fit into Jefferson's view of those that need to be "erased from the roll".

Privacy advocates have personally peeved me off, in the paranoid concerns about the growing powers of government to monitor people. While government may not unreasonably search you, that does not prohibit the government from collecting information that is out in the open. They cannot come into your private property - your house - without a warrant and that's still mostly true, but if you leave your house into the general public, you are fair game, not only for the government, but for anybody. It's also important to note that many of the monitoring activities that happen today aren't the government, but instead private companies, who watch you for their own purposes (security reasons or customer profiling). While it should be illegal for the government to have greater power to wiretap and search your personal property, saying they should not have the electronic capacity to use information that is visible and already public is an absurdity. We have to remember the "right to privacy" means one specific thing - we have a right to protect ourselves from unreasonable search and seizures, and not to be forced to testify against ourselves. That is all "right to privacy" ever meant, it is a conglomerate right of several different provisions of the Bill of Rights, not a natural right in and of itself. It doesn't mean that if you get your name and address published on a website that you can sue it or shut it down or that the government can't get public library records of the books you rent out (the library, after all, is a government agency!). Simply put, nothing in the Constitution protects you from other people learning about what you do, it only protects you from government officials raiding your private property or compelling you against yourself, moreso, it limits what people in government can do by requiring due process. Yes, a loss of due process, such as the Patriot Act, should concern you and make you think about the abuses of growing government, but that does not mean the "right to privacy" it attacks is a real a
solute right, or a natural right.

The moment you interact with others, you lose parts of your privacy. If you want total, complete privacy, live in a big box with no windows, which emits no sounds, and never let anyone in. Don't use any signals - digital or analog - of any sort. That is real privacy - and if the government infringes on your right to do that without reasonable cause or due process, then I will be the first to stand up for you. However, most of the information the government gets about you, it is merely getting from other government-driven resources the public insist on using, or public places. If you can eliminate the government's eternal presence everywhere you will eliminate most of the logical problems with government spying on you - it will have fewer areas by which to have cause for spying. Of course, that means the "right to privacy" debate should be more focused on basic freedoms, and the prevention of government from becoming the megamassive state that can abuse its information. A smaller government is a government you don't have to worry about watching you.

As for Daniel's point? Yes, government is too big and incompetent to invade the privacy of every person at every moment of their lives, meaning we should be less concerned about that, and more concerned about real violations of our rights. Like, for instance, the income tax, the massive welfare state, the federal centralization of the banks, the looming national debt, the unnecessary foreign military actions, increasing business regulations, manipulations of the stock markets & the domestic currency, federally mandated inflation, obscure & contradictory laws too numerous to list... on the list of "things wrong with government", "Being able to find out what books you check out at the library" is number #10983. Treat it that way and stop being paranoid.

Later on, during the discussion of The Commons Blog, I have Jefferson side with the free market environmental movement. Jefferson was a passionate environmentalist in his day, some may even argue that he would be in favor of today's massive environmental agencies, but I differ. I believe that the reason Jefferson was a passionate environmentalist is because he owned and cared for his own private land, not because he thought that land should be public domain. The traditions which created the free market environmentalist movement and gave us a perspective of the Tragedy of the Commons come far closer to Jefferson's school of thought about the environment than modern environmentalism's Socialist, big-government origins. A good example is his home, Monticello. Monticello was not only a ripe plantation - it had plush gardens, rich foliage and contained many well-devised, green rows of trees. Jefferson loved land and made it a point of his presidency to create the Lewis & Clark expedition to survey it for Americans. However, he believed it was a virtue that private citizens feel this way, I doubt he would have supported the massive government takeover of forests and preservation sites, nor the increased government interference in private landowner's activities - he may even object to the idea of no one actually living in his estate (although it would be a minor objection in the face of his estate now being considered an international landmark). Jefferson wanted to pass on as much of this knowledge to the next generation (he planted trees in his old age in the hopes that the people to come after him would appreciate the scenery), in the hope that the next generation would feel the same way.

Jefferson would truly be disappointed to see native Americans today, as he did have a reverence for them in his time. However, native American reservations get most of their funds and special privileges as puppet territories of the U.S. government. I admit I'm a bit biased - I am a native American, although I've never thought much of the native American culture. Jefferson would probably be disappointed to see that civilized natives have not embraced American culture enough to want to enjoy the same privileges of average Americans, especially in cheap sell-out bid to the states for simple pleasures like gambling revenue (gambling was something that Jefferson absolutely utterly detested). That is simply a lame deal that anyone of any race should feel ashamed to accept.

If you haven't guessed, the John Wells of the "Cadwalder, Wickersham and Taft" story is the original founder of the aforementioned law firm. You can read a brief of the history of the company at Wikipedia.org. Jefferson never met Wells that I'm aware, but hey, why not a good little patriotic side story to follow the theme?

The story of the cher madame in the reply to the Dark Goddess of Replevin's post was taken from a letter from Jefferson to Anne Willing Bingham in 1787. I felt it indirectly had a good tie-in and would let a Jefferson story help give us a little bit better perspective on our individual pursuits of happiness. On July 4th, I recommend that you take the time to do at least one thing to make you feel good about the future... launch a project or start a savings. Definitely don't let your 4th get lost in too much empty bustle.

Jefferson touched most on issues of copyright when he discussed his feelings about patents and government-granted monopolies on "ideas", the intellectual patent. Having temporary patents on the ideas behind inventions and original works (such as books) was something he conceded was necessary - but something that he felt was very wrong in any long-term approach. I believe he would have felt the same way about that the idea of digital copyright and "intellectual property", so I took excerpts from his letter to Isaac McPherson in August of 1813 where he suggested there be no patents on ideas, in reference to a recently acquired patent on elevators, and replaced many of the references to inventions with intellectual property, to illustrate that point further. Jefferson did not believe it helped humanity to give monopolies to people who had good ideas, and he would have felt the same about intellectual properties and digital copyright. Copyright, trademark and patents are constructs to prevent fraud, nothing more, nothing less. They are not intended to offer a permanent source of monopoly revenue to the first person with a good idea. In Jefferson's time the Copyright Act of 1787 gave most authors special incentives to continue production of their works, but in Jefferson's time a good book or map were invaluable assets to society, hence why they warranted the special exemption. In today's high-tech world, the ability to produce meaningful works is so broad that copyright should be further limited, but legislators often view copyright as a one-way deal or a natural right, and abuse it by creating the everlasting copyright. This breeds absurdities - did you know if people sing the Birthday song without Time Warner's permission in their works that they can get sued or forced into paying Time Warner royalties, in spite of the fact that it is a 112 year-old song with no known original author? Imagine if someone copyrighted the Bible in this fashion! Copyright denies the general public from ever fully absorbing any specific bit of knowledge. "Fair use" is the method by which copyright is limited, and nothing is more "fair" than to concede that anything freely expressed - with original credit goes to the author and where there is no competitive profit-making to infringe on the original author's copyrighted market - is part of the eminent public domain that copyright was never meant to permanently dominate.

During the quick rub on the topic of Judicial Review, I was sure to mention at least one quote out of several readable ones from Jefferson's thoughts about the judicial review & the Marbury vs. Madison case of 1803. It is a page definitely worth reading. When many powers of government today lie in Supreme Court interpretations, we should ask ourselves, what is going too far and when should we do as Jefferson considers, form another Continental Congress to arbitrate the powers between the separate branches? I definitely think some kind of formal public review of our government's dealings in the judicial as well as the legislative and executive branches would do the country a great deal of good.

Well, I hope you enjoyed Jefferson's take on things, and if you agree or disagree with any of the ideas put forth I invite you to comment about it with the comments link above on the SuperPatriot.net "Monticello" forums. Monticello is a fairly large and diverse message board community, however registration is required before you can comment on this post. It is a fairly painful process and I hope to see some of you new visitors on our forums. This journal is a part of a larger website that explores Libertarian ideas, The New American Myth, if you are interested in the ideas Jefferson puts forth perhaps you would also be interested in the Libertarian ideas on the aforementioned website. You may not believe Jefferson would be a Libertarian today, and I'm not necessarily putting forth that he is - but I hope you do agree that many of the opinions in this journal reflect on his insight & spirit in a way that honor one remarkable founding father. So I hope everyone takes a moment this July 4th to remember Jefferson's role in authoring the Declaration of Independence and that they leave a thought of remembrance for those great Americans we have lost along the way, including minds like Thomas Jefferson and John Adams, who both passed away on July 4th, 1826. Mourn our freedoms lost and celebrate our freedoms further maintained.

Thanks for visiting, and a special thanks to the Editor at Blawg Review and everyone who submitted posts. Enjoy your 4th!

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