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Thursday, March 11, 2010

Draft 2 of proposed amendment #1

The proposed amendment is now being broken up into many small parts.

We start with this:

Proposed amendment to the US Constitution.

1. It is recognized that an implied right of the 9th amendment is the right to a election, and vote count, that is relatively free of corruption and error, given the current level of technology and ability.

2. No vote count that fails the test of corruption and error shall be certified. If necessary, a second election shall be held using different technology.

3. Congress shall have all authority to pass laws addressing any issue with regard to this, including but not limited to:
* Accuracy of voting machines and the vote count procedure
* Determination of acceptable technologies.

(** Important: What else should go into this list? **)

4. Enforcement of this amendment shall be delayed 5 years after approval. The intent and purpose of this delay is to give states the opportunity to acquire voting equipment that satisfies basic accuracy standards, as well as to provide congress with the opportunity to consider and discuss, and pass laws in accordance with section 3.

The real issue with the supreme court: Overturning Austin

There's a lot in the Citizen's United ruling that is just bad. Bad logic (and outright logic errors); mis-application of prior rulings; making rulings on subjects without taking arguments pro and con, and those rulings being outright wrong/full of errors; etc. Steven's dissension makes a point of this.

More discussion on this is at XKCD, as before.

But there is one key issue that was recognized -- BADLY, and improperly -- in Austin. A "9th amendment" implied right.

The right to a relatively corrupution free vote and vote count.

That may sound silly. But lets face it: If it were not for that, no one would care about Chicago last century, or Ohio and Florida this century.

Monday, March 8, 2010

Can corporations be subject to jail or execution? Should they?

Over at The Archdruid Report, there's an interesting take on corporate responsibility:

The kernel of that is in two points:

First, something which I would agree with, but use somewhat different wording:
Still, the most obvious difference between corporate persons and natural persons these days is that the corporate kind are noticeably more antisocial. They pursue their purposes – primarily, making money – with a single-mindedness and a lack of concern for consequences that, in natural persons, would be accurately labeled psychopathic; they’ve proven themselves consistently willing to lie, cheat, steal, and kill whenever the likely return on these acts outweighs the risk of punishment.
Can you force an insane person to be committed to a mental institute? Used to be yes; now it seems to be no. Can a psychopath be locked up if they present a danger to others? Can a corporation that acts in a manner that causes danger to others be locked up? What does it mean to be locked up?

One popular proposal would subject corporations to regular review by some independent body which could annul the charter of any corporation that refused to be properly housebroken, forcing its dissolution. What would keep this body honest in the face of the fantastic potential for corruption, the proponents of this notion do not say, but there’s another issue here: we’ve actually got a tolerably effective way of responding to antisocial behavior; we just don’t apply it to corporate persons the way we do to natural persons.
Sadly, I have no solution to the corruption issue, and fear that this cure would be worse than the disease. What about review by the courts? Archdruid has an even better answer at that point:
This is why natural persons who are convicted of felonies, by and large, can’t get away with just paying a fine; they go to jail, or if the crime is heinous enough and it happens in a jurisdiction with capital punishment, they die. While it has its failings, this approach to antisocial behavior generally works a good deal more effectively than the wergild principle.

From this perspective, the problem with corporate persons is simple enough: the only risk they run in breaking the law is that they have to pay wergild, and that doesn’t constrain antisocial behavior any more effectively now than it did in Anglo-Saxon times.
A little history since I'm taking away some context: "the earliest version of English common law, from which our American legal system descends, operated entirely on the basis of fines. The principle of wergild, as it was called, gave each person a cash value". If you can pay the fine, you can get away with anything. We've had similar things in this country at times; pay a fee to support the war, and avoid the draft ("There's no difference between a conscript and a convict"), etc.

Archdruid even goes so far to recommend jail, or dissolution (death) for corporations that break the law. Jail consists of the government taking over the corporation, possibly firing people at the top, stock losing all value (dividends, voting rights, etc) during this time. Profits go to the government. Death even includes creditors getting zero; all assets sold at auction, funds going first to victim restitution, etc.

Is this a good idea? I like the idea -- the kernel is great. But the execution is horrible.

Consider one company at the start of this whole economic mess. A bank, that was in the business of "junk loans". Instead of junk bonds, many of which would be worthless, you had junk bond funds -- lots and lots of junk bonds, so that even with some worthless, the whole group paid well. Now take that same approach to home loans. Lots of loans, many worthless, sold and packaged as a group.

One Monday, that investment bank was $120 per share. Employees there were required to keep their retirement package in, at least in part, company stock.

By next monday, the banking regulators had shut it down. They turned down a $4 per share offer, for a $2 per share offer. They wanted the death of the bank to hurt.

But they wound up hurting people whose job required them to invest in that bank, more than people who had the choice to invest in that bank.

What's the problem?
1. Lack of information. Had the true state of Bear Stearns been known, there's no way it would have had a share value of $120.
2. Lack of choice. Employees that are forced to choose from a company's choice of stock investment options are unfairly hurt by this.

Archdruid also makes the same mistake that the SCOTUS made -- the confusion between "corporation" and "Corporation that exists to make profit". Note that I'm also trying to distinguish "Corporation that makes profit on behalf of shareholders, publicly traded". A private corporation really does look like a group of people getting together as a group to excersize the rights of people as a group.

Maybe private corporations need to lose the liability limits that public corporations have. More rights comes with more responsibilities. Isn't that what we teach our children?

Is that what corporations are today? Children that have no parents?

Sunday, March 7, 2010

Can a strict constitutionalist really be in favor of limiting free speech?

So this is something that may seem like a shock. Can a strict constitutionalist, like me, really be in favor of restricting free speech?

What would happen if you had truly unrestricted free speech and freedom of the press?

  1. The 7 words decision would be overturned.
  2. Prisoners would be allowed to publish papers telling the world about their situation.
  3. Prisons would not be able to restrict access to computers, or computer discussion forms; in fact, it could be argued that they would be required to provide computer access for prisoners to write blogs or participate in discussions about the treatment of prisoners.
  4. 6-12 year olds, in elementary school, would have the right to speak out against their teachers, or engage in "learning strikes".
  5. Publication of books, or games, or computer programs, etc, to teach law breaking would be unrestricted --

    • States could not restrict the teaching of Lock Picking, but anyone could provide very realistic training tools, games, online sites, etc, such that anyone could be expected to be able to pick most consumer locks and enter any residence
    • Books on how to kill a person would be legal
    • Posting of advertisements seeking hitmen, or offering hitman services, would be legal.
    • NB: This doesn't mean the act of killing would be illegal, but the advertisement would be just more freedom of the press.
Do I think that this is a good thing? 

Interestingly enough, while a book on how to kill someone may be bannable, a program on how to break into a computer program is not only not bannable, but a standard tool for testing your computer system for basic security leaks. At least, until you run it at work -- then you can be convicted of three felony counts. That's not a lie -- a computer admin, newly hired, was sued by the company he worked for, after running COPS on the system to test it for security issues.

The book on killing someone? While I don't have the case to cite, this happened while I was growing up, and was reported in the Los Angeles times.

Lock picking? We locked ourselves out of a building. Standard $10 doorlock. Had to get a professional lockpick out. I wanted to watch him, to learn how to do this myself; he told me that state law prohibited him from letting me watch.

So do we have freedom of the press, freedom of speech, freedom of teaching today?

To a larger degree than any other country, yes.
Absolute? No.

Should this be absolute? I'll leave that as an open question.

    Discussions this week, at XKCD...

    There is a lot of discussion on this topic this week at XKCD

    What is clear seems to be that this amendment needs to be broken up into several:

    1. Some review on supreme court decisions (see Steven's dissension, as well as the logic errors I pointed out in the XKCD thread)
    2. Some partial overturning of the ruling (The spending by Citizen's United is valid; the decision to overturn all corporate restrictions is not).
    3. Entirely separate, restrictions on the claimed rights of corporations.

    Monday, March 1, 2010

    The rest of the amendment

    Two parts here. First, a few sections need minor fixes. Second, the second half is now presented.

    First, the fixes. Bold is added text; strikethrough is removed text

    Section 2:

    A: People, or person, as used in the constitution, refers to natural people. It explicitly excludes robots, artificial intelligence devices, corporations, or any other created entity. The 10th amendment does not grant rights to these entities.
    As much as I'd like to leave that bolded section out, and claim that it's implied, I feel much better with it explicit. Courts have a history of not reading implications / implied conclusions of the constitution.

    Section 2B has bad wording. It needs improvement, and I don't know how to write it better.