Computers, Privacy & the Constitution

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MitchellKohlesFirstPaper 4 - 04 Apr 2021 - Main.EbenMoglen
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
 

Constitutional Obligations

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 Of course, this balancing is precisely what Congress, upon ratification, chose to explicitly reject in declaration III(2), favoring the constitutional baseline.

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What is the actual subject here? The federal constitution creates a government of limited powers which, in the mind of its drafters, was intended not to act directly on citizens. It isn't the constitution of the Soviet Union or the People's Republic of China for this reason, among others, nor is it the Constitution of Idaho. Rights, in the Hohfeldian sense, imply duties. In general, as you say, the US constitutions, state as well as federal, begin from citizen's rights and government's duties. But the legislative powers created by those instruments can and do impose duties on citizens, though not, as you seem repeatedly to propose, the duty to vote.

I think the best route to improvement, then, is clarity about the generality of your argument. Obligations imposed by laws constitutionally made are not different from duties constitutionally imposed, so what is the real point of the argument? If the subject is why our federal constitution should be replaced by one involving different theories of the distinction between "constitution" and "law," that's a worthy subject, but it should not be presented as an interpretation of existing constitutional provisions. If the distinction between plenary state power and limited federal power is no longer relevant in your view, which is certainly a tenable argument, it should be stated and the reasons given.

 

[1] The project for positive rights appears to face a steep uphill battle. For a long-term roadmap to establishing one such positive right, see Erwin Chemerinsky, Making the Case for a Constitutional Right to Minimum Entitlements, 44 Mercer L. Rev. 525 (1993).


Revision 4r4 - 04 Apr 2021 - 19:17:44 - EbenMoglen
Revision 3r3 - 18 Mar 2021 - 18:24:57 - MitchellKohles
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