It's Not Magic
Writings of a techie wizard
Archive: 2011‑Aug
Wed, 31 Aug 2011

I just came across an article that shows I'm not the only one who thinks that US Constitutional law has gone a little overboard in its interpretation of the Marbury v. Madison Supreme Court decision. The article's position is summarized in this paragraph, towards the end of the introduction:

It is the fundamental betrayal of Marbury's premises and Marbury's logic that accounts for nearly all of what is wrong with "constitutional law" today. The twin peaks of constitutional law today are judicial supremacy and interpretive license. Marbury refutes both propositions. Correctly read, Marbury stands for constitutional supremacy rather than judicial supremacy. And constitutional supremacy implies strict textualism as a controlling method of constitutional interpretation, not free-wheeling judicial discretion.

The bit about "strict textualism" is explained further later on in the article:

Marbury's conception of written constitutionalism implies a particular methodology of constitutional interpretation: originalist textualism - that is, the binding authority of the written constitutional text, considered as a whole and taken in context, as its words and phrases would have been understood by reasonably well-informed speakers or readers of the English language at the time.

As I noted in my previous post, this does raise questions when considering issues that weren't even contemplated by the Framers, such as whether wiretapping constitutes a "search and seizure" under the Fourth Amendment, as in Olmstead v. United States. But such questions always end up being questions of classification, not principle: whether wiretapping counts as a search and seizure, rather than whether evidence obtained by a search and seizure without a warrant is admissible (no one disputed that it was not). As I noted in my previous post, many of the Court's classifications (such as what they think counts as interstate commerce) are highly questionable, and the logic suggested by the above quote can be used to see why. Would an average American in 1790 have agreed that growing food on one's own property for one's own use counts as "interstate commerce"? I'm guessing not. So on the whole I think the methodology advocated in the article is sound.

The full article is worth a read, and I won't belabor the details of its arguments here (though I will note that the article focuses, as I did, on Chief Justice's Marshall's statement that the Supreme Court's job is to "say what the law is", and how that statement has been taken way out of context). However, I can't resist one more quote:

Marbury truly fits Mark Twain's definition of a "classic": a work that everybody praises but nobody actually reads. Marbury is invoked today for the myth it has become, not for its actual reasoning and logic.

Which is a good brief summation of what I was getting at in my previous post. (Please note that this is not a blanket endorsement of everything on the Free Republic website, which is where the article is posted. The article itself is from the Northwestern University School of Law.)

Posted at 17:59   |   Category: opinions   |   Tags: history, politics   |   Permalink
Sun, 28 Aug 2011

In a previous post I mentioned the Protect IP Act as an example of government making things worse instead of better when it tries to censor the Internet. Today I came across an article talking about another very bad effect that the Protect IP Act would have if it were passed: it would break DNSSEC, which is a key security mechanism that lets your computer validate DNS records, so that, for example, when you type your bank's URL into your browser, you know that you're talking to your bank's server, instead of some rogue site that has been set up to impersonate it.


Posted at 12:55   |   Category: opinions   |   Tags: computers, politics   |   Permalink
Fri, 26 Aug 2011

Twenty years ago (yesterday, to be exact, but cut me some slack here), Linus Torvalds posted a message to the Usenet newsgroup comp.os.minix, announcing that he was working on a free operating system and wanted to know what features people were interested in. The original message is on Google Groups here. So it's time for another brief nerd interlude:

peter@localhost:~$ uname

At some point I'll do a longer post on why the above is true, but for now I think I'll just let it stand by itself. Thanks, Linus, for starting it all 20 years ago, and thanks to all the developers and distributions who have kept it going.

Posted at 12:37   |   Category: opinions   |   Tags: computers   |   Permalink
Sun, 14 Aug 2011

I've already referred to my favorite Heinlein quote once, and I'm sure I'll be doing it again, so I figured I might as well lay it out in full and unpack in detail why it's my favorite quote. Here it is, from Time Enough For Love, as noted on wikiquote:

The human race divides politically into those who want people to be controlled and those who have no such desire. The former are idealists acting from highest motives for the greatest good of the greatest number. The latter are surly curmudgeons, suspicious and lacking in altruism. But they are more comfortable neighbors than the other sort.


Posted at 18:17   |   Category: opinions   |   Tags: politics   |   Permalink
Mon, 08 Aug 2011

The New York Times, which is certainly a bastion of the liberal arts types if anywhere is, has been running a debate about law school that is similar to the one about college in general that I discussed in my post a couple of weeks ago on the two cultures.


Posted at 22:40   |   Category: rants   |   Tags: education, politics   |   Permalink
Fri, 05 Aug 2011

For non-nerd readers, I promise I won't do this very often, but once in a while I just have to get these sorts of things out of my system. Does anyone else find the following (from a transcript of a short Unix shell session) a little weird?

peter@localhost:~$ true
peter@localhost:~$ echo $?
peter@localhost:~$ false
peter@localhost:~$ echo $?


Posted at 22:19   |   Category: general   |   Tags: computers   |   Permalink
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