Noam Chomsky, Aaron Swartz, and constitutional matters


View 758 Wednesday, January 16, 2013


Noam Chomsky Killed Aaron Swartz.

‘Lobbyists are only interested in money. Activists are only interested in power. Sometimes a great nexus of corruption thrusts forth a figure of genius, such as Al Gore, who dazzles us with a talent for both.’


Roland Dobbins

The article claims that Aaron Swartz was enamored of the views of Noam Chomsky, and this self deception was the cause of his death. It is an interesting view, but it sheds far more light on the views of Mr. Chomsky than those of Mr. Swartz.

I will say from the beginning that I was never a great fan of Aaron Swartz and his circle of friends, and of course I believe in copyright and intellectual property rights. I am also a great fan of the Constitution of 1787, which does not grant the Federal Government the right to issue monopolies except under certain conditions. In the England of 1787 – which is to say England after the Civil War, England after the Glorious Revolution of 1688 with its Bill of Rights – still accepted that great powers resided in the sovereignty of the Crown. There was some dispute as to how much of the power of the Crown resided in the King (and his appointed ministers) and how much had passed to Parliament, but there were few who dissented from the notion that government had great power over its subjects.

The Declaration of Independence challenged that notion. To the Declaration, governments derived their just powers from the consent of the governed, and nowhere else. The Convention of 1787 never made that declaration, although many of those who sat through those hot days of a Philadelphia summer accepted it; but they explicitly said that no such residuum of sovereign power was vested in the Federal Government. To the extent that there were unspecified powers they were reserved to the states of the people. This wasn’t in the exact wording of the Constitution – although Hamilton insisted that they were a logical implication – so the words were added to the Bill of Rights, so they might as well have been. Hamilton said there was no need for a Bill of Rights because the general government had no powers not explicitly granted in the Constitution, and he would have considered the notion of emanations from penumbras the ravings of a mad tyrant.

One of the residual powers definitely not granted to the general government – the feds – was the power to issue monopolies, either by Executive Decree (Executive Order, Royal Rescript, whatever you want to call it) of by Act of Congress.

One power was explicitly given:

“The Congress shall have power … 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.

Note that nothing was said about intellectual property.

Note also that nothing was said about who owns the rights to intellectual property created through grants of public money.

My – sympathy, affection, agreement, whatever you care to make it – with Aaron Swartz has to do with his challenge to ITHAKA’s monopoly of access to journal accounts and the high prices it charges. I think someone ought to challenge that monopoly, and I think Mr. Swartz performed a public service in doing so. I think a public trial of Mr. Swartz, which probably would have resulted in a conviction although jury nullification is always possible, would have been a healthy thing for all. As I say, it probably would have resulted in a conviction of Mr. Swartz, and his sentence to something under a year of imprisonment, and perhaps a fine (which would undoubtedly have been paid by public subscription). Instead the US Attorney sought 35 years of imprisonment, offering no alternative other than a plea of guilty – and thus no trial, and no challenge to the ITHAKA monopoly.

It seems as if the goal of that prosecution was not enforcement of laws against stealing, but prevention of a trial that would have exposed the ITHAKA monopoly.

I remain of that opinion.


Los Angeles has an interesting First Amendment case. A recent county initiative – a form of direct democracy that California seems to like a lot (unsurprising in a state given the history of its legislature) – requires that actors in pornography films wear condoms. One pornography company (which a few years ago required the use of condoms but abandoned that after it adopted a system of STD testing for all its performers) now challenges the law on the grounds that it adds nothing to public health, and restricts the First Amendment rights of both the producer and the performers.

A spokesman for the porn industry asserts that no one since 2005 has contracted AIDS from acting in a pornographic scene, and that more than 300,000 hard core pornographic scenes have been filmed since that time. One actor has come forward to assert that he has become HIV + as a result of being involved in pornographic movies. It is asserted that he engaged in sexual activities not part of any pornographic recordings, and the industry continues to assert that the condom requirement does nothing for public health while it does restrict the rights of free speech.

In the early days of the Republic it was explicit that the Bill of Rights did not necessarily apply to the States, and that continued even after the Civil War, Reconstruction, and the Fourteenth Amendment. After World War I this began to change and the Supreme Court began to assert that the Bill of Rights could be enforced by the Federal Government against the states. As an example, seven of the original 13 States had established churches with tax-paid clergy, and this continued the 1830’s when the last established church was disestablished by its state legislature. The regulation of religion including religious practices – such as benedictions and closing blessings at public ceremonies like road openings and public building dedications – was left entirely to the states. That is hardly the case now, as SCOTUS found emanations and penumbras in the Bill of Rights.

Is requiring an actor to wear a condom a violation of a right guaranteed by the Constitution of the United States?

I look forward to hearing the arguments before the Supreme Court of the United States a few years from now. when the Awful Majesty of the Law will tender us a decision.


Much of my day was devoured by locusts, but I now have new glasses, and they greatly improve my vision; clearly I went too long without getting new eye tests. Now to catch up.


National service 

Dear Dr. Pournelle,

Former General McChrystal is on record as favoring a draft of some kind.

“Service member” should not apply only to those in uniform, but to us all.

The concept of national service is not new, nor is it outdated. When America needs it, national service is the personal obligation of every American. And she needs it now.

All of us bear an obligation to serve—an obligation that goes beyond paying taxes, voting, or adhering to the law. America is falling short in endeavors that occur far away from any battlefield: education, science, politics, the environment, and cultivating leadership, among others."

I wanted your opinion on this, because I believe that this concept would be anathema to the founding fathers. While all able-bodied males were expected to be part of the militia, which could be federalized, the idea that the federal government could conscript labor at whim seems more like something which would be done by the Pharoahs of ancient Egypt rather than free Americans.

I just re-read the Declaration and the original bill of rights, and while it doesn’t appear this specific issue was addressed in either of those documents, there’s a little bell going off in the back of my mind to the extent this WAS addressed by the founders as not being a good thing. Perhaps in the federalist papers?


Brian P.

Machiavelli urged republics to employ conscription for their defense, rather than hiring long term professionals. His view was that standing armies became independent entities, and transmogrified into mercenaries. The United States had that view until, and for that matter after, World War II. The professional military of the United States was intended to deal with immediate matters, but it was not to be large. For the vast majority of the time of our republic, the Navy belonged to the President and could be used to intervene in foreign affairs, but the Department of War – the Army – belonged to the Congress and could be employed only in real declared wars.

Much of that changed after World War II, and of course the existence of the Air Force and particularly the Strategic Air Command complicated everything: SAC, after all, possessed the power to end the world as we knew it. This was clearly not a task for conscripts. Then came Viet Nam. And after that came the professional military, the volunteer forces, and the United States became the world superpower. So far that has not brought about the difficulties Machiavelli prophesied, and the Framers’ fear of large standing armies becoming the instrument of tyranny – since they could always subdue the militia – has not so far come to pass. I understand that many Old South loyalists might dispute that statement.

Universal manhood conscription has always had a unifying effect, and has been employed in nations such as Sweden and Switzerland – both known for their ability to maintain neutrality during world wars – with considerable success. One effect of conscription is to acquaint the citizens with each other: I had never known anyone but fellow Southernors when I went to Basic Training, and I certainly had never known any blacks my age. For that matter, I hadn’t really got to know any Southernors other than those from Shelby County, Tennessee. It was an enlightening experience for me. Of course I wasn’t a conscript, but many in the Basic Training barracks were.

In addition to enlightening experiences, subjection to basic military training was a positive experience for me, and I suspect to most of those around me. We griped, we complained, but we were at the age usually called ‘coming of age’ and that is no bad description.

The objection to conscription is that it is the ultimate tax, and Mr. Heinlein maintained that a nation that had to resort to conscription did not deserve to survive. This is an essentially moral argument and depends mostly on one’s premises. I will note that democracies have employed conscription far more often, and far more vigorously, than aristocracies and monarchies.

In response to your question, the Framers had mixed emotions on the subject. The Continental Congress clearly thought the States had the power of conscription and urged that they raise militias for the national service by impressment (generally for one year terms). This was employed without much success by some states, refused by others. By the time of the Civil War the federal Congress had no qualms about passing a conscription Act. nor did the Confederacy, and both sides employed conscript soldiers throughout the war.

I will also note that Rome not only employed conscription during the entire history of the Republic. Indeed. military service was considered a privilege. The Senate and People of Rome were very reluctant to erect long term standing armies.  Of course the Army was the mainstay of the Emperor after the collapse of the Republic.

In other words, you ask a very complex question to which the best answer is that we all need to give all this considerable thought. In general professional soldiers are much more effective than part time militias, and standing armies generally win when wars begin; the strength of democracies is that they could use professionals to hold off disaster while they raised armies. That is the traditional basis of the American Way of War. The argument is that the world has greatly changed now, and we have no choice but to have a large professional standing army. The counter argument is that such an army can be employed far more easily and in stickier situations than an army of citizens and their children.  We will not settle that here.







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