Articles

Omniveillance Update from Eric Schmidt- “We know where you are, we know what you like.”

Sep 7th

Posted by Josh Blackman in Omniveillance

Eric Schmidt, the CEO of Google had this to say about the future of search:

“Ultimately, search is not just the web but literally all of your information – your email, the things you care about, with your permission – this is personal search, for you and only for you.”

“We can suggest what you should do next, what you care about. Imagine: We know where you are, we know what you like.”

“A near-term future in which you don’t forget anything, because the computer remembers. You’re never lost.”

Shocked? I’m not. Readers of Omniveillance will recall that this has been Google’s goal for quite some time. Here is what I wrote nearly 2 years ago:

In an interview conducted by the Financial Times, Google CEO Eric Schmidt admitted the company’s future goal is to organize people’s daily lives.139 Specifically, Schmidt augured that one day “users [will] . . . be able to ask the question such as ‘What shall I do tomorrow?’ and ‘What job shall I take?’ ” and Google would be able to answer those questions.140 Udi Manber, Google’s Vice President of Engineering in charge of Google Search, reaffirmed this sentiment, and posited that Google has “to understand as much as we can user intent and give [users] the answer they need.”141 Mr. Schmidt acknowledged that the primary obstacle to this goal is not the technology, but the lack of information Google possesses about people.142 Talking to journalists in London, Mr. Schmidt stated, “We cannot even answer the most basic questions because we don’t know enough about you. That is the most important aspect of Google’s expansion.”143

New Article: A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition

Sep 2nd

Posted by Josh Blackman in Citizenship

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Very interesting article in the NYU Law Review titled A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition. Here is the abstract:

This article argues, contrary to conventional accounts, that the animating purpose of the American Constitution was to facilitate the admission of the new nation into the European-centered community of “civilized states.” Achieving international recognition – which entailed legal and practical acceptance on an equal footing – was a major aspiration of the founding generation from 1776 through at least the Washington administration in the 1790s, and constitution-making was a key means of realizing that goal. Their experience under the Articles of Confederation led many Americans to conclude that adherence to treaties and the law of nations was a prerequisite to full recognition, but that popular sovereignty, at least as it had been exercised at the state level, threatened to derail the nation’s prospects. When designing the federal Constitution, the framers therefore innovated upon republicanism in a way that balanced their dual commitments to popular sovereignty and earning international respect. The result was a novel and systematic set of constitutional devices designed to ensure that the nation would comply with treaties and the law of nations. These devices, which generally sought to insulate officials responsible for ensuring compliance with the law of nations from popular politics, also signaled to foreign governments the seriousness of the nation’s commitment. At the same time, however, the framers recognized that the participation of the most popular branch in some contexts – most importantly, with respect to the question of war or peace – would be the most effective mechanism for both safeguarding the interests of the people and achieving the Enlightenment aims of the law of nations. After ratification, the founding generation continued to construct the Constitution with an eye toward earning and retaining international recognition, while avoiding the ever-present prospect of war. This anxious and cosmopolitan context is absent from modern understandings of American constitution-making.

In many respects the Declaration of Independence was a notice to the other countries of the world, through the so called law of nations, that the United States was now a sovereign country. From this declaration, I have argued that original citizenship began, and citizens of the United States came into existence. I look forward to reading this article to see if it has any impact on my research into citizenship in our early republic. It’s long at 130 pages, but worth the read.

Originalism at the Right Time: America’s Forgotten Founders

Aug 26th

Posted by Josh Blackman in Right Time

3 comments

Richard Albert has a nice piece at the Huffington Post titled America’s Forgotten Founders. The article implores originalists to not only consider our nation’s first founding in 1787, but also our second founding in 1868 with the ratification of the majestic 14th Amendment.

One passage really stood out:

Just as the Supreme Court looks to the intentions of the constitutional drafters to uncover the meaning of the original Constitution, the Court should also look to those who wrote and inspired the Fourteenth Amendment to understand the meaning of today’s modern Constitution.

Frederick Douglass, Harriet Beecher Stowe, John Bingham — these and other draftspersons and drivers of the Fourteenth Amendment are Americans as great as the founding fathers. Only by learning from them may the Court help make real the promise of liberty and equality that America’s second founding augured for the nation and its people.

The Supreme Court would therefore do well to expand its sphere of constitutional authority beyond Madison, Hamilton, Jefferson and other founding fathers to also include America’s forgotten founders.

That is absolutely correct, and is a perfect illustration of the concept Ilya Shapiro and I developed in Pandora’s Box, dubbed Originalism at the Right Time.

Interpreting the Second Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. The Supreme Court faithfully executed this strategy in Heller. But what about the Interpreting theSecond Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. TheSupreme Court faithfully executed this strategy in Heller. But what about the right to keep and bear arms as applied to the states? Federal protection against state encroachments on individual liberty began with the ratification of the Fourteenth Amendment. 1868 is thus the proper temporal location for applying a whole host of rights to the states, including the right that had earlier been codified as the Second Amendment as applied against the federal government. 259 Interpreting the right to keep and bear arms as instantiated by the Fourteenth Amendment—based on the original public meaning in 1791—thus yields an inaccurate analysis. The respondents make this mistake in their McDonald brief, however, recounting the history of the Second Amendment in 1791 as dispositive of the meaning of the right to keep and bear arms in 1868.260

Originalists need to consider the proper temporal location when construing the Constitution. We addressed this issue in the context of the Second Amendment, but it really applies to interpreting any constitutional provision that relies on the 14th amendment–whether it be the due process clause, the equal protection clause, the understanding of a right incorporated to the states, and dare I say the privileges or immunities clause.

Thanks to Ilya Shapiro, my Pandora co-author, for the pointer.

McDonald v. Chicago, Bill of Rights Uniformity, and the Equality of Rights

Aug 23rd

Posted by Josh Blackman in Equality of Rights

1 comment

Jason Mazzone has a fascinating piece at Balkinzation focusing on Justice Stevens’s argument that the provisions of the Bill of Rights need not apply in the same way everywhere.

Here is a snippet:

Justice Stevens’s dissenting opinion in McDonald v. Chicago is remarkable for many reasons. This post focuses on Stevens’s argument that provisions of the Bill of Rights need not apply in the same way everywhere. The Justices in the majority did not fully come to terms with Stevens’s claim. Understanding Stevens’s argument and assessing its implications require reading McDonaldthrough the lens of some earlier cases in which Stevens also wrote about Bill of Rights uniformity.

The argument boils down to this. Justice Stevens wrote in Kansas v. Marsh that “state courts should be free to apply provisions of the Bill of Rights that protect criminal defendants more stringently against state government than Supreme Court case law requires . . . Extending Stevens’s approach in Marsh to the Second Amendment therefore raises the possibility that a state court would invalidate a state law that a federal court has held constitutional.”

Should state courts interpret the federal constitution differently than a federal court interprets the constitution?

Mazzone writes:

Stevens made no mention of Marsh in McDonald. But both cases rest on similar ideas: Provisions of the Bill of Rights need not apply in the same way everywhere. So long as states do not drop below a national floor, they can pursue different approaches. Variation can be a good thing because it produces the federalism benefit of experimentation.

Provisions of the Bill of Rights need not apply in the same way everywhere SO LONG AS states do not drop below a national floor. States can pursue different approaches as long as they provide more, and not less protections than the federal right requires.

I would agree with in theory, though I think this comment somewhat obfuscates the issue in McDonald. The issue was not what an Illinois Court would have done with the Chicago handgun ban. The issue was whether the City of Chicago could pass an ordinance that would be unconstitutional were it enacted by the Federal Government, but constitutional were it enacted by the states. This is the “two-tiered” scheme that Stevens seeks to adopt–a theory that no other Justice joined.

I have no problem with Stevens’s opinion in Kansas v. Marsh because it expands liberty/limits government power. The liberty ratchet only goes one way. I do have a problem with a Citizen of Chicago having a weaker right to keep and bear arms than a citizen of the District of Columbia.

I am not familiar with any other Stevens opinion (I may be wrong) where he advocates that a state provide less individual liberty than the federal government. Stevens does not view the individual right to keep and bear arms a form of liberty. Rather, the “liberty interest” protected by the Second Amendment is “dissimilar from those we have recognized in its capacity to undermine the security of others,” and “firearms have a fundamentally ambivalent relationship to liberty.” Because Stevens does not see the 2nd amendment as promoting liberty, the liberty ratchet really doesn’t apply.

This concept stems from an article I have been developing called the equality of rights. Simply put, why are some rights different from other rights?

Omniveillance: Minority Report Is Real, Entire City to Track People With Public Iris Scanners

Aug 18th

Posted by Josh Blackman in Omniveillance

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This is quite scary. Basically, the city of 1 million people is installing iris scanners across the entire city in public places. The city will index the iris scans of every criminal, and if a criminal walks past a scanner, he will be flagged and the authorities will be alerted. Additionally, the scanners will track people as they travel across the city.

Here is the story From Fast Company:

Biometrics R&D firm Global Rainmakers Inc. (GRI) announced today that it is rolling out its iris scanning technology to create what it calls “the most secure city in the world.” In a partnership with Leon — one of the largest cities in Mexico, with a population of more than a million — GRI will fill the city with eye-scanners. That will help law enforcement revolutionize the way we live — not to mention marketers.

Leon is the first step. To implement the system, the city is creating a database of irises. Criminals will automatically be enrolled, their irises scanned once convicted. Law-abiding citizens will have the option to opt-in.

When these residents catch a train or bus, or take out money from an ATM, they will scan their irises, rather than swiping a metro or bank card. Police officers will monitor these scans and track the movements of watch-listed individuals. “Fraud, which is a $50 billion problem, will be completely eradicated,” says Carter. Not even the “dead eyeballs” seen in Minority Report could trick the system, he says. “If you’ve been convicted of a crime, in essence, this will act as a digital scarlet letter. If you’re a known shoplifter, for example, you won’t be able to go into a store without being flagged. For others, boarding a plane will be impossible.”

From now on your iris is your digital scarlet letter.

Law-abiding citizens will have the “option to opt-in”–for now. Let’s see how long before opt-in becomes mandatory.

For such a Big Brother-esque system, why would any law-abiding resident ever volunteer to scan their irises into a public database, and sacrifice their privacy? GRI hopes that the immediate value the system creates will alleviate any concern. “There’s a lot of convenience to this–you’ll have nothing to carry except your eyes,” says Carter, claiming that consumers will no longer be carded at bars and liquor stores. And he has a warning for those thinking of opting out: “When you get masses of people opting-in, opting out does not help. Opting out actually puts more of a flag on you than just being part of the system. We believe everyone will opt-in.”

Gizmodo has more about this scary phenomenon:

Imagine a public eye scanner that can identify 50 people per minute, in motion. Now imagine that the government install these scanner systems all across an entire city. Or don’t imagine it, because it’s already happening, right now.

There are different kinds of machines being installed across Leon, from large scanners—capable of identifying 50 people per minute in motion— to smaller ones—like the EyeSwipe in the video above—that range from 15 to 30 people per minute. These devices are being installed in public places, like train and bus stations, and connected to a database that will track people across the city.

According to Jeff Carter, the Chief Development Officer of Global Rainmakers, the producer of this technology:

the future, whether it’s entering your home, opening your car, entering your workspace, getting a pharmacy prescription refilled, or having your medical records pulled up, everything will come off that unique key that is your iris. Every person, place, and thing on this planet will be connected within the next 10 years.

Can’t wait till Google finds out about this. Omniveillance fail.

Pierson v. Post Overturned, Lockean Labor Theory Adopted

Aug 17th

Posted by Josh Blackman in Pierson v. Post

21 comments

LawsForAttorneys.com posts a perfect piece of perfect legal satire titled Shock permeates legal world as Pierson v. Post overturned.

In what can be billed as one of the most surprising decisions handed down in recent memory, the ruling in Pierson v. Post, one of the nation’s oldest property-law cases, was reversed this week by the Supreme Court of New York. The court’s reconsideration of the ruling was prompted by new evidence arising from an in-depth autopsy analysis that was performed last month on the remains of the fox at the heart of the famed case.

However, earlier this summer at the request of Broderick Post, great-great-great-grandson of Lodowick Post, the remains of the fox were exhumed and analyzed, at a personal cost of about $1 million. The long-overdue autopsy found conclusive evidence that, by the time Pierson had discovered the fox, it had already died of exhaustion from Post’s pursuit. Post then petitioned the court to have the case reopened.

All levity aside, this piece but illustrates the endurance of Locke’s Labor Theory. In this revised historical account, Post’s pursuit of the fox was the proximate cause of the fox’s death. Chasing the fox–and not physical capture–caused the fox to tire. This deprived him of his natural liberty, and signified capture.

However, the appellate court sided with Post, holding that the death of the ferae naturae (the fox) was proximately caused by Post’s chase. “The fatal exhaustion was the mortal wound that killed the fox,” wrote Justice Oring for the majority.

I discussed just this issue in an article I wrote (and am about to submit to the law reviews this month) titled OutFoxed: Pierson v. Post and The Natural Law (SSRN).

Pufendorf and Grotius required mancupation (physical occupation) in order to constitute possession of a wild animal. The jurists also permitted occupation by mortally wounding the animal, even in the absence of physical control. Under certain circumstances, a hunter can retain dominion of a wild animal, even if it escapes.

According to Barbeyrac, physical mancupation is not always required to constitute dominion. Barbeyrac adopts a Lockean labor theory, and considers the value of mixing labor when determining whether property exists. Next, I analyze the crux of Pierson; can pursuit yield dominion? I find that Judge Tompkins, writing for the majority, narrowly construed Barbeyrac’s view of pursuit in order to resolve a split of opinion among the jurists, and rule in favor of Pierson, the interloper. I also find that Judge Livingston writing for the dissent, to his own detriment, also narrowly construed Barbeyrac, and conceded that pursuit cannot establish dominion. Barbeyrac can be read to create a possessory right in a hunter who pursues a fox, openly declaring his intent to seize the beast, such that others know about it. Therefore, the holding in Pierson was not necessarily consonant with all of the natural law authorities on point.

Under a Lockean theory of labor, also adopted by Barbeyrac, Post acquired title to the fox because of the labor he invested in the hunt. By contrast, the majority opinion–which was apparently overturned 200 years later–relied on Punfendorf’s conception of property,which required physical capture.

200 years later, Locke was vindicated!

The Geopolitics of Google Earth

Aug 17th

Posted by Josh Blackman in Omniveillance

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I have blogged about cities relying on Google Earth to find tax cheats who have undeclared swimming pools. This piece in Foreign Policy Magazine, titled The Geopolitics of Google Earth elaborates on some of these themes, and discusses how “Armchair cartographers are also getting in on the game, uncovering — and creating — political minefields.”

Here is a sample:

DEAR LEADER’S BACKYARD

Where: North Korea

What: No longer is the world of spy satellites and orbital reconnaissance the sole domain of the U.S. National Security Agency and the CIA. From the comfort of one’s living room, amateur sleuths have trained their eyes on the cloistered North Korean regime of Kim Jong Il, discovering everything from nuclear sites to airbases, surface-to-air missile batteries to secret underground bunkers. A few years ago, Google Earth images revealed North Korean submarines — the existence of which Pyongyang had long denied — neatly lined up along the country’s western coast. This begs the question: why would such a notoriously secret regime leave its vast array of military hardware out in the open, in plain view of commercial mapping satellites?

Military analysts suggest it might be a form of deterrence, a show of strength to anyone watching. Whether there’s fuel enough for the hundreds of jets spotted on North Korean airfields is another matter. As for these mansions around an artificial lake, one can only speculate as to the owners … but it’s a bit odd that the roof of the house on the northwestern shore has huge numbers that clearly show the birth dates of Kim Il-Sung and Kim Jong Il.

North Korea watchers have been aided in their task by Curtis Melvin, a George Mason University doctoral candidate who, with a legion of volunteers, has created the world’s most authoritative annotated map of the Hermit Kingdom using Google Earth. In 2008, Sen. Sam Brownback (R-Kan.) used Melvin’s maps of North Korean prison camps in a presentation on the Senate floor, saying, “Google has made a witness of all of us. We can no longer deny these things exist.”

Could you pass Justice John Marshall Harlan’s 1899 Constitutional Law Exam?

Aug 16th

Posted by Josh Blackman in Citizenship

1 comment

Here are the questions from Justice Harlan’s 1899 Constitutional Law Examination. I unearthed these from the treasure trove that is Justice Harlan II’s papers at the Library of Congress. Think you can handle these?

Hint. You do not need to cite any cases.

60 minutes. Closed book. You may begin.

Besides the particular restraints upon the States, and certain powers vested in the Judiciary, enumerated the remaining powers comprehended under this head.
How far does the power to regulate commerce among the states, extend? [J.B. Ha!]
What particular objects does it comprehend? [J.B. Ha! Ha!]
What interpretation has been given to the power with respect to commerce with the Indian tribes?
In what character and relation are they regarded by the Constitution and laws of the United States?
With what is the power to establish Post-Offices and Post-roads necessarily connected?
Mention some of the benefits derived from it?
How far is it exclusive?
What implied powers have been exercised as incidental to it?
What rule has been laid down in relation to the exercise of incidental and implied powers?
What is the extent or limitations of the powers to coin money, to regulate its value, and that of foreign coins?
What is the extent or limitation of the power to fix the standard of weights and measures?
To what other powers is that of providing for the punishment of counterfeiting the public securities, and current coin of the United States, incidental?
How far is it exclusive?
What is the nature and advantage of the power to prescribe by general laws the manner in which the public acts, records, and judicial proceedings of each state, shall be proved, and the effect they have in other States?
What faith and credit are those of each State entitled to in the Courts of the United States?
What effect have they as evidence in different cases?
Under what circumstances are they admitted as prima facie evidence?Under what circumstances as conclusive evidence?
What is meant by prima facie evidence?
What is the nature and extent of the power to establish a uniform system of naturalization?
To what rights are the citizens of each State entitled in all the others?
Upon what ground is the power of naturalization held to be exclusive in the Federal Government?
Who were entitled to the privileges of citizens of the United States, at the time of the Declaration of Independence? [J.B. I wish I had Justice Harlan's answer key for Question #23. Would definitely help with Original Citizenship.]
What difference is there in the rules upon this subject in the United States and Great Britain?
What is the difference between the two Governments as to the doctrine of allegiance?
What is the term applied to persons born out of the United States?
What exceptions are there in the application of the term?
What is the existing law of the United States relative to naturalization?
What inducements have aliens coming to reside in this country to become citizens?
What reasons were there for investing Congress with the power to establish uniform laws on the subject of bankruptcies?
Define the term bankruptcy.
How far is this power exclusive.

Is (part of) the 6th amendment (partially) redundant?

Aug 8th

Posted by Josh Blackman in Original Crime

2 comments

Article III, Section 3:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The 6th Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In 1789, before the 6th amendment was ratified, it would seem a criminal defendant would have had the right to trial by jury. That trial will have been held in the state wherein the crime was committed.

The 6th amendment also guarantees the right to trial by jury, and requires that the trial be held in the state (and distract–thats new) where the crime was committed. The 6th amendment adds the right to a speedy and public trial, requires that the jury be impartial (though I’m not sure what good a partial jury is), and some other stuff.

So is part of the 6th amendment redundant if Article III already protected these rights? I don’t know. I just had never noticed this duplicative language before.

Update: Thanks to tipster Mike below. John Marshall Harlan (who else) addressed just this question in Callan v. Wilson in 1888. Harlan FTW.

Original Crime – The Federal Authority to Create Federal Criminal Laws

Aug 8th

Posted by Josh Blackman in Original Crime

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According to Justice Breyer in Comstock, Congress has the power to create a statute that “is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others”

In other words, if Congress has the power to create the federal criminal law, they also have the power to do what is “necessary and proper” to deal with those crimes–such as punishing the violators. Before getting into what a federal crime is, in this post I seek to systematize what the original “federal authorities” were that “permit[ted] Congress to create federal criminal laws” as they existed in 1789.

I think these authorities can be lumped into four categories.

The first category deals with Congress’s clearly enumerated powers.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
“To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures”
“To provide for the Punishment of counterfeiting the Securities and current Coin of the United States”
“To establish Post Offices and post Roads;”
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
To establish “uniform Laws on the subject of Bankruptcies throughout the United States”

For example, Congress could create a crime to punish someone who counterfeits security, or messes with post offices, or violates patents, or doesn’t pay taxes. The commerce clause fits in this category not its modern inception–where it can mean just about anything–but according to its original meaning. If some bandit interfered with the flow of goods travelling from New York to Pennsylvania, Congress would have the power to pass criminal laws that are necessary and proper to effectuate its power to regulate interstate commerce. I will even grant something like the Mann Act inclusion in this category, because it involves something (white slaves in this case) crossing state lines. I will leave aside the moment whether Congress has the power to criminalize the growing of wheat on a farm (Wickard) or pot in your backyard (Raich).

The second category deals with Congress’s authority over war and the armed forces:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

These provisions are the basis for the original Article of War and later the Uniform Code of Military Justice. Congress can punish someone who fails to comply with the rules created to regulate the army, navy, militia, etc.

The third category deals with Congress’s authority over certain powers as the sovereign within the Law of Nations:

“To establish an uniform Rule of Naturalization”
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

These powers discuss the sovereignty of the United States Federal Government. Congress would thus have the power to criminalize those who break the laws of naturalization (wink wink Arizona), make all criminal laws in the District of Columbia and other federal properties (not states). In perhaps the clearest delegation of powers, Congress can make laws punishing piracies and felonies on the high seas that violate the law of nations.

The fourth category is interesting. These are limitations that the Federal Constitution imposes on the states. Theoretically, the Federal Government could criminalize these activities, and punish the states for their violation, though I’m not quite sure how that would work:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

I suppose judicial review and an Article III smack on the wrist is the only way to punish states for violating these principles.

These are the four categories of Federal Authority under which the Congress in 1787 had the power to make federal crimes. At some point, Congress started to pass laws not in these 4 categories. This is the question I seek to answer in my work-in-progress titled Original Crime.

Wisdom of the Crowds: Dan 3.0 To Outsource his life decisions to the Internet

Aug 7th

Posted by Josh Blackman in Omniveillance

No comments

From Gizmodo:

The notion behind Dan 3.0 is that “groups make better decisions,” he says. (About what? That’s up to the group.) Using an online “decision engine,” Dan is outsourcing his “decisions” by letting participants suggest and vote on daily tasks. Each day, he says, he’ll do the most popular task. So far this has taken him to the streets of Lincoln, Nebraska to high-five strangers. And it’s taken him on a walk to the nearest city, Walton.

But don’t worry, Dan says, the big tasks are coming; he and Internet-television network Revision3 just need more time to plan. Then they can focus, for instance, on one of Dan’s favorite topics: his girlfriend. She might get a birthday visit from Dan—if his viewers want it. And since “my viewers care about me,” Dan says, chances are they’ll give him the task he wants. Now who’s controlling whom?

I wish him well, though he may be better off just letting the Google tell him what to do.

I would be remiss if I did not quote from Eric Schmidt from Omniveillance:

In an interview conducted by the Financial Times, Google CEO Eric Schmidt admitted the company’s future goal is to organize people’s daily lives.139 Specifically, Schmidt augured that one day “users [will] . . . be able to ask the question such as ‘What shall I do tomorrow?’ and ‘What job shall I take?’ ” and Google would be able to answer those questions.140 Udi Manber, Google’s Vice President of Engineering in charge of Google Search, reaffirmed this sentiment, and posited that Google has “to understand as much as we can user intent and give [users] the answer they need.”141 Mr. Schmidt acknowledged that the primary obstacle to this goal is not the technology, but the lack of information Google possesses about people.142

Original Citizenship to be Published in University of Pennsylvania Law Review PENNumbra

Aug 6th

Posted by Josh Blackman in Citizenship

3 comments

I am proud to announce that I will be publishing “Original Citizenship” in PENNumbra, the online supplement to the University of Pennsylvania Law Review. The essay will be published in December.

Here is the abstract:

The word “citizen” is used in the original Constitution in three different locations. It is used to set the qualifications for serving in the House of Representatives, the Senate, and the Presidency. Second, it is used in Article III to spell out the requirements for diversity jurisdiction. Third, Article IV limits the entitlement of “all Privileges and Immunities” to citizens. While the Article III and Article IV referents to citizenship relate to state citizenship—which was defined in many cases by state law—Article I and Article II invoke citizenship “of the United States,” a term heretofore that lacked a meaning.

An obvious question arises. Who was a “citizen” of the United States in 1789 when the Constitution was ratified? How was citizenship of the United States determined in 1789? When did United States citizenship begin? These are questions that modern scholars seemed to have entirely overlooked. Yet, these are a question that the Framers of our Constitution, early members of Congress, and the United States Supreme Court confronted. Viewing these questions through a semantic originalism lens reveals that the understanding of citizenship in those early years possessed a meaning that has seemingly been lost to the ages.

There are a few possible candidates to mark the beginning of United States citizenship: July 4, 1776, when the Declaration of Independence was signed; March 1, 1781 when the Articles of Confederation were ratified; September 3, 1783 when the Treaty of Paris was signed; January 14, 1784, when the Treaty of Paris was ratified by the Congress of the Confederation; September 17, 1787, when the delegates to the Constitutional Convention signed the Constitution; and June 21, 1788, when New Hampshire became the ninth, and final state needed in order to ratify the Constitution.

The First Congress held its initial meeting on March 4, 1789 at Federal Hall in New York City. Assuming that members of the Senate met the requisite citizenship requirement—although there was a prominent challenge to the qualifications of one member of the House—simple arithmetic seems to rule out all but one of these possibilities. If a Senator would have needed to have “been nine Years a Citizen of the United States” on March 4, 1789, that would require that the Senator would have needed to be a Citizen of the United States on March 4, 1780. This date precedes all of the relevant dates, other that the Declaration of Independence. Fortunately for lawyers—who are notoriously poor at math—we are left with a historical record that helps to resolve this inquiry much more decisively.

The evidence for this historical enigma is to be found in four different historical fonts. First, Enlightenment era philosophies, as well as state laws on notions of citizenship help to fill in the gaps in our understanding of original citizenship. Second, though opaque, remarks made during the Constitutional Convention intimate and sketch a portrait of how the Framers treated Citizenship of the United States. Third, because the House is the “Judge of the Elections, Returns, and Qualifications of its own Members,” early records of contested elections in the House help to explicate the contours of the original understanding of America citizenship. Fourth, in several early Supreme Court cases, the Justices considered this question to determine when citizenship should have begun. From this record, a picture emerges—as originally understood, American citizenship began not with the ratification of the Constitution, not with the ratification of the Articles of Confederation, not with the signing of the Treaty of Paris, but in Philadelphia on July 4, 1776 with the signing of the Declaration of Independence. The Declaration of Independence conferred citizenship—a positive political right—and the founding generation seemed to understand this concept.

Does the Declaration of Independence carry the force of law? The conventional answer is clearly no. For over a Century, the Supreme Court has held that while the Declaration of Independence “may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty . . . it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence.” Justice Kagan reaffirmed this reasoning during her confirmation hearing in an exchange with Senator Coburn, remarking that the Declaration of Independence lacks the force of law. So does July 4, 1776 and the Declaration of Independence have the force of law? Yes—at least with respect to notions of “citizenship.”

With this observation, over a century of Supreme Court jurisprudence finding that the Declaration of Independence has no force of law seems doubtful, at least with respect to citizenship. Additionally, if the Declaration of Independence was understood to confer the right of Citizenship, what other rights did it give to “We the People?” Based on this refined understanding, this article will further explore abolitionist thought—from Frederick Douglass and Lysander Spooner among others—that relied on the Declaration of Independence to promote a promise of equality of citizenship for all.

Though the answers to these queries has been lost to the sands of time, and stare decisis likely precludes any meaningful change in our laws, this article aims to answer whether the Declaration of Independence, as understood at the time of the framing of the Constitution, had the force of law.

Original Citizenship

Aug 6th

Posted by Josh Blackman in Citizenship

4 comments

Here is a draft proposal for an article I intend to submit shortly to the Originalist Works-in-Progress Conference held at the University of San Diego. This proposal builds on a series of blog posts. All comments are much appreciated.

Original Citizenship