Posts Tagged ‘U.S. Constitution’

Dead Celebrities and the Constitution

Monday, 2 January 2017

The law has long treated the images of living persons as something like trademarks, so that the use of such images without the consent of those persons is restricted in various ways. Over the last few decades, there have been efforts — some successful — to turn these images into property of a sort that may legally be bequeathed upon death, as opposed to such images lapsing into the public domain.

The potential monetary rewards increased simply as celebrity became more culturally important. And the evolution of CGI has made it possible to fabricate the appearance of persons in video, not only increasing opportunities to make money from such images but to use those images in ways that many of us would see as grossly abusive (for example, in pornography).

Reflexively, quite a few people want law at a Federal level to protect the images of the dead. But there is some reasonable question as to whether the US Constitution empowers the Federal government to act.

The rub comes by way of Article I §8, which enumerates the powers of Congress. It specifically empowers Congress

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;

As I've explained, this enumeration did not creäte copyrights; it instead gave Congress limited power to protect them; without that empowerment, the matter would simply have been left in the hands of common law and of the legislation of the constituent states. But neither §8 nor any other part of the unamended Constitution makes explicit mention of intellectual property of any other sort, and it is an unreasonable stretch to suggest that there is implicit reference to similar such property, exactly because there had been a felt need for explicit mention of the rights of authors and of inventors. Any prerogative to protect the images of the dead was left in the hands of the constituent states.

I used the word unamended advisedly, because one might try to make a case that the Fourteenth Amendment empowers the Congress to treat personal images as continuing to be property beyond personal death. But one can legitimately make that claim only if somehow the associated rights are basic rights of persons (or of US citizens as such) or can be shown to derive from basic rights; the Fourteenth Amendment doesn't empower Congress to reconfigure legal rights ad libitum.

There's a wide-spread propensity to confuse great desirability with moral necessity. But the penalties of law are always ultimately acts of violence, and there's a need for more than emotional appeal when the law forbids something. So, while it would be greatly desirable for the images of the celebrated dead to be treated with something like the respect that they would have received when alive, a solid case should be made for regarding them as property, or indeed they should be regarded as not property.

Some efforts to make personal images into property that remains such beyond the death of the persons have focussed on getting constituent states to have it treated as such in law. It's perhaps worth noting that the Fourteenth Amendment might be read to block the constituent states from converting these images to property (though I am sure that no court to-day would accept that reading).

On the Concept of Ownership

Monday, 23 May 2016

I have long and often encountered discussion that implicitly or explicitly involves notions of property or of ownership, which discussion is rendered incoherent from a failure to consider what it means for something to be property, what it means to own something.

Some confusion arises because we have come often to use the word property casually to mean an object (physical or more abstract) to which some sort of ownership may apply, without our considering whether the object is well conceptualized for purposes of considering property rights,[1] and without considering that actual ownership associated with that object might be distributed in some complicated ways amongst multiple parties.

One might, for some reason, associate a plot of land with an object imagined as beginning at the center of the Earth and extending to some sort of limits of the atmosphere (or beyond); from such an association, and then from a presumption that the whole object were property, farmers were once known to shoot at airplanes as trespassing vehicles. Yet other folk would assert that owning a plot of land as such only entitled one to control things to lesser depths and heights, in which case the rights could be associated with a smaller object, representing a sub-object as it were. One person might be thought to have the right to farm the aforementioned land, and another to extract its mineral resources so long as he didn't thereby interfere with the farming. Possibly others would claim peculiar easements, allowing them to travel through some or all of the object without thereby trespassing. There might be purported rights entitling still others to flows of resources such water, air, and electromagnetic radiation travelling through the object. In the case of sunlight (an electromagnetic radiation), the rights would typically be presumed to involve only some space above the soil, and the farmer might both have claims against her neighbors doing things that reduced her sunlight and be constrained by similar claims for her neighbors.

If we are thinking in terms of one object, and then change to thinking of an object within it, previously relevant rights of ownership may become irrelevant. If we instead think in terms of an object of which our original object is but a part, then new claims may become relevant. Two objects, neither of which is completely contained in the other, may share some third object as a part; so that any thorough consideration of ownership involving these two objects containing the third may involve rights that are literally identical and rights that are different. The minimal object relevant to describe some asserted set of property rights might not be sufficient to describe other rights none-the-less associated with that object. The minimal object in each of the previously mentioned cases (of farming, of easement, of mineral extraction, and of unobstructed resource flow) is somewhat different from the minimal object in the other cases.

A farmer who somehow forfeits her right not to have sunlight artificially obstructed may still be imagined to own the plot of land on which she grew her crops, yet she doesn't own what once she owned. Likewise, a house-holder who somehow surrenders his right to come and go from the plot on which the house sits doesn't own what once he owned. And, though it would perhaps seem very unsual, one might imagine these rights not transformed into claims for those who have prior rights to surrounding spaces, but instead coming into possession of third parties. For example, perhaps I speculate that I can buy whatever rights I need to build a skyscraper, on the assumption that I can buy a right to block the sunlight to a neighboring farm; I could purchase that latter right first, then discover that I am thwarted as to other purchases. This might work nicely for the farmer, but she no longer has a right that she once had; she no longer owns something that she once owned.

We can still express what things are owned as if they are objects, but we must then select our objects to match our rights of use. And our discourse can become strained and unnatural if we insist on always treating the thing owned as a distinct object rather than as a right of use. For example, if Timo is exclusively entitled to inhabit a cabin in the Winter and james is likewise entitled to inhabit it in the Summer, and we must express them as owning distinct objects, then we must treat the cabin in Winter as one object and the cabin in Summer as another. Indeed, we will surely have to be far more contrived in our construction of objects to account for what the two jointly do not own of the cabin! On the other hand, we can say that each has a right to use the cabin in some way without necessarily specifying how other rights of use are distributed; the concept of the cabin is available without first settling questions of ownership.

I don't propose that we generally stop using the word property as in the ordinary sense of a piece of property, merely that we understand that this everyday use may be misleading. Nor would I suggest that we should somehow stop thinking in terms of objects when we carefully consider ownership. But we must be alert to the fact that our choice of objects with which to think is largely taxonomic and to some degree arbitrary, and we should not take results that are no more than artefacts of that taxonomy as anything more profound.

In fact, the right of use may be recognized as itself an object of an abstract sort, but the right to use a right of use is not distinct from simply that right of use, and thus cannot be dissociated from it.[1.5]


My laboring of the relationship of ownership to objects and their uses isn't quibbling nor pirouetting. People who imagine an object as such to be owned tend all too often to imagine it somehow being owned beyond any of its various possible uses. They thus imagine that it can remain the property of one person or group even as another party — most often those in control of the state — appropriate its use, and even as this second party seizes every right of use. It then also becomes absurdly thinkable that one person might retain every right of use that she had, associated with an object, yet transfer ownership to some other party. Ownership would be reduced to absolutely nothing more than something such as a formal title.

When the state regulates property, it is taking rights of use and hence ownership. This transfer is relevant to questions of compensation (as in the case of the guarantees of the Fifth Amendment to the US Constitution[2]), and of whether state regulation of the means of production is a form of socialism.


[1] The word object comes from the Latin ob-iacere, meaning throw-before, and referred originally to that thrown before the mind. What we now call objects are, however, mental organizations of what is thrown before us. Thus, to use a classic example, we can talk about my hand as an object, and my fist as an object; they seem to be the same object, yet only sometimes. (We may still, in good conscience, use the word objective for perceptible external reality. And extending it to include unperceived and imperceptible external reality shouldn't cause more than mild discomfort; the rightful demands of etymology are not unlimited.)

[1.5] This paragraph was added on 24 May.

[2] That Amendment (with an underscore by me) reads

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Disjunctive Jam-Up

Friday, 26 September 2014

The Eight Amendment to the Constitution of the United States declares

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
(Underscore mine.) The constitution of the state of California has a much more complex discussion of bail; but its Article 1, §17 declares
Cruel or unusual punishment may not be inflicted or excessive fines imposed.
(Underscore mine.) Plainly these words are an adaptation from the US Constitution.

The replacement of and with or was apparently to indicate that cruel punishment were not to be deemed acceptable simply by virtue of being usual. Indeed, Article 1, §17 of the constitution of the state of Florida used to declare

Excessive fines, cruel or unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden.
(underscore mine) and the state supreme court made just that interpretation in cases of the death penalty. (The section has since been radically revised.)

However, a hypothetical problem arises from the replacement. Just as cruel punishment is not acceptable regardless of whether it is unusual, unusual punishment is not acceptable regardless of whether it is cruel. And if most or all prevailing punishments were cruel, then any other sort of punishment were unusual; and unusual punishment has been forbidden. Thus, under such circumstance, all punishment were forbidden!

This problem may not be merely hypothetical, in the context of problems such as prison over-crowding. (Of course, when push comes to shove, lawyers and judges tend to shove logic out the door.)

Fourteenth Amendment Re-Redux

Sunday, 13 January 2013

Perhaps I'm a Constitutional hipster, in-so-far as I was talking about section 4 of the Fourteenth Amendment before it was cool to do so. After it had become cool, I felt moved to explain

[The Fourteenth Amendment] is indeed [the law that empowers the President to increase the ceiling] — where the only way not otherwise in violation of the Constitution to pay debt that has come due is to borrow beyond the existing limit. If the debt can be paid in some other way, then no special authority can be found for the President in section 4.

[…] The President doesn't get to say that he or she must raise the limit to continue funding institutions to which he or she can apply profound and moving terms, unless those institutions are indeed Constitutionally mandated.

With talk of the President raising the borrowing limit by decree again heating-up, I feel moved to labor aspects of what I'd earlier explained.

As debt comes due, for which sufficient funding has not been allocated, the Federal government can do one or more of five things:

  • Default.
  • Increase tax collections.
  • Decrease other expenditures to allocate more revenue for debt service.
  • Liquidate assets.
  • Engage in new borrowing to service the debts from previous borrowing.
Advocates of the President raising the ceiling by decree want to pretend that the Constitutional prohibition of the first of these five options empowers the President to effect the last of these options by decree. But there would be three other options; it is appropriate to ask why the President wouldn't instead be required to choose one or more of the other three.

And, if a decision must be made amongst some or all of the four options not prohibitted by section 4 of the Fourteenth Amendment, it is not evident that it is the President's decision to make, even if the Congress will not. In the absence of Constitutional guidance, there is no apparent reason that abdicated legislative responsibility should go to the executive branch as opposed to the judicial branch.

Fourteenth Amendment Redux

Saturday, 9 July 2011

Back in May of 2010, I posted an entry about the Fourteenth Amendment to the US Constitution and the national debt. I'm not sure that readers found that entry particularly interesting at the time, but it gets an ever-increasing number of hits, as the United States approaches default, and as parts of the political left have begun drawing attention to the Amendment. More specifically, parts of the political left have claimed that the Amendment actively requires Congress to increase the debt ceiling, and other parts have claimed that the Amendment empowers the President to increase the debt limit without consent of Congress. It's that latter claim that I will now examine.

Let's return to the actual language of section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

(Underscores mine.) Now, an important phrase here is authorized by law; the question is of how a debt as such comes to be authorized by law.

The Constitution itself is law, superior to any-and-all further legislation. It is the Constitution that creätes the Presidency. Before and after the Fourteenth Amendment, the Constitution does not invest any law-making authority in the Presidency beyond what can be said to exist in ability to negotiate treaties with foreign powers (and these treaties must be ratified by a two-thirds majority of the Senate), and Congress has not delegated to the Presidency the authority to increase the debt ceiling.

So the question truly is of whether and when the Fourteenth Amendment might, as parts of the political left claim, be itself exactly the law that empowers the President to increase the ceiling. And the answer is that it is indeed that law — where the only way not otherwise in violation of the Constitution to pay debt that has come due is to borrow beyond the existing limit. If the debt can be paid in some other way, then no special authority can be found for the President in section 4.

And there is the rub. The President doesn't get to say that he or she must raise the limit to continue funding institutions to which he or she can apply profound and moving terms, unless those institutions are indeed Constitutionally mandated. The political left will find none of its distinguishing programmes amongst these institutions. (And, should they bother to read what's actually there, the political right would find that many things that it regards as essential are not actually required by the Constitution.)

The US Constitution and the National Debt

Monday, 10 May 2010

The Confederate States of America went into debt to finance their war of secession. After the war some of their creditors wanted that debt repaid. The United States, on the other hand didn't want them to recover any of their investment, for the obvious reasons. In response to the insistence that this debt not be paid, sympathizers of the Confederacy suggested that, likewise, the debt of the Union should not be paid, for the obvious reasons. Additionally, it was argued that the emancipation of slaves was a taking of private property, so that, under the Fifth Amendment, former slave-owners were owed just compensation.

The North reminded the South who was making the rules, and included the following as section 4 of the Fourteenth Amendment:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
(Underscores mine.)

There's probably someone out there somewhere, even now, insisting that the debts of the Confederacy should be repaid, or that descendants of slave-holders are owed reparations, but those issues no longer have much currency, nor can they be expected to recover currency.

On the other hand, when addressing the debts of the United States, that Amendment included but did not limit itself to those debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion. What remain potentially relevant, then, are the underscored words:

The validity of the public debt of the United States, authorized by law, […] shall not be questioned.
The national debts of the United States cannot Constitutionally be repudiated, without further Amendment. Under the Constitution, they have to be serviced; and, when they come due, they have to be paid.

Present levels of deficit spending are widely seen as unsustainable, and the United States Treasury has begun to pay discernible risk premia, which is to say that a significant part of the market expects that the United States might default. So one question is of how a default might be effected.

In theory, an Amendment could quickly be ratified to permit default, though a significant share of the national debt remains domestically held, which would tend to brake the passage of such an Amendment. Of course, the beginning of the process of amendment would drastically erode confidence in the debt, so that the risk premia would grow dramatically, and the Treasury might find itself almost immediately unable to pay bills, and might remain unable to do so until the Amendment were ratified and restructuring negotiations were completed.

A more likely process would be a Declaration of Emergency, under which the Constitution were suspended, as the federal state worked-out what it could expropriate from whom. (The Constitution makes absolutely no provisions for such emergency suspensions, but we've had a long history of our rulers claiming the power to effect them,[1] and of courts doing little to check such actions.) Again, the United States might be unable to borrow money, but the process of partial repudiation could immediately be brought forward.

Or it might be that the debt were restructured without the consent of creditors. Such a restructuring would, in fact, be a partial repudiation, but lawyers and judges have long proved adept at making distinctions where there are no differences.


[1] With one exception, during each war since the adoption of the Constitution, the President has suspended provisions of the Constitution. That one exception was Madison, who had been the principal author both of the Constitution and of the Bill of Rights.

Silence Is Golden …and American

Friday, 19 June 2009
Minn. lawmaker vows not to complete Census by Stephen Dinan in the Washington Times

I know for my family the only question we will be answering is how many people are in our home, she said. We won't be answering any information beyond that, because the Constitution doesn't require any information beyond that.

Shelly Lowe, a spokeswoman for the U.S. Census Bureau, said Mrs. Bachmann is misreading the law.

She sent a portion of the U.S. legal code that says anyone over 18 years of age who refuses to answer "any of the questions" on the census can be fined up to $5,000.

Ms Bachmann is reading the relevant law just fine, and Ms Lowe is engaged in treason.

The United States Constitution is the supreme legislation; no part of it can be annulled by an ordinary act of Congress. The Constitution provides for a census, but the Fifth Amendment protects us from having to offer more information than the identities of those in our households.

In the last two Censuses, all that I have provided was that information. In the first of these, I received a telephone call from the Bureau of the Census about my failure to provide more information, and I stated my refusal firmly. They dropped the matter, because they know that the legal code will not pass constitutional muster; it is a bluff.