"It is wholly implausible to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow.
It is a reading that thoroughly undermines both the legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers."
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As the power that the legislature "considered yet declined to allow" the judge refers to the existing law, CALEA (Communications Assistance for Law Enforcement Act):
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"it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also" "even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe."
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Another side, according to Reuters:
http://www.reuters.com/article/us-apple-encryption-deny-idUS...
"The Justice Department is "disappointed" in Orenstein's ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said."
In 1798, the fifth Congress passed the Alien and Sedition Acts, which were signed by President John Adams, and were used to arrest or deport people critical of the government. [1] I don't think that's absurd at all. They weren't saints and they didn't have precedent to stop them from doing things like that.
You parent's point is "The fifth Congress did in fact undermine those principles in another case, so it's not so absurd to think that the AWA was intended as the government now claims".
Granted, first vs fifth.
And the point of the comment you're responding to is that the quoted argument is a non sequitur, which it surely is. The fact that the fifth Congress voted for a bad, self-serving law that violated the principles of the Constitution is completely irrelevant to whether the first Congress, in passing the All Writs Act, was doing the same. The argument is really quite circular: the belief that it is not absurd that the first Congress willingly violated the principles of the Constitution is the premise, not a conclusion that can be drawn from something done by the fifth Congress or the 105th Congress.
The Obama Administration began with a bailout of the American auto industry, and here seven years later, it is pouring billions of dollars into self-driving vehicles that could disrupt that same industry. I'm sure there are examples to be found in every administration (and Congress) before Obama, all the way to the First Congress.
IMHO, I'm really glad that a judge decided to rule in a way that says the Government cannot contradict itself. I wish it happened more often.
At the recent "Detroit Auto Show, Transportation Secretary Anthony Foxx announced that the DOT would make a '10-year, nearly $4 billion investment to accelerate the development and adoption of safe vehicle automation through real-world pilot projects.'"
However, if you believe that self-driving cars are the inevitable future, which I and many do, then I'm not sure this is really evidence of a contradiction. Both can be seen as investments in keeping the American auto industry alive and relevant in a global economy.
That doesn't take away from your larger point that governments do seem to contradict themselves all the time, i.e., make investments and pass laws/have policies that work at cross purposes.
If Google or Apple start producing self-driving vehicles, they're part of the American auto industry. If GM then can't keep up with them, who cares? The American auto industry is still perfectly fine, just consists of different companies.
Now if the Obama Administration wouldn't invest into self-driving cars and companies from other countries would grow big in this space, there might not be much of an American auto industry left afterwards. If anything, not investing into such research would be contradictory.
My argument is that the premise that the law can't be interpreted according to the governments wishes because the noble founders would have never written a law violating constitutional principles is clearly false, because they did so on more than one occasion.
Of the 95 members of the 1st US Congress, 21 (~22%) of them were members of the 5th US Congress, with the following breakdown:
* 5 senators (~17%) remained senators;
* 9 representatives (~14%) remained representatives; and
* 7 representatives (~11%) became senators.
Notes: John Brown was initially a representative of Virginia, then later became a senator of Kentucky (which was part of Virginia at the time of the 1st US Congress). William Smith (MD; 1st US House), William L. Smith (SC; 1st US House), and William Smith (SC; 5th US House) were all different people.
Method: moderately careful transcription plus grep, perl, sort, uniq, and comm.
EDIT: Thanks for adventured for the correction. I mistranscribed Philip Schuyler's name when copying down the members of the 5th US Congress.
[0] I didn't independently check the lists on Wikipedia[1][2].
[1] https://en.wikipedia.org/wiki/1st_United_States_Congress
[2] https://en.wikipedia.org/wiki/5th_United_States_Congress
James Gunn (GA), John Henry (MD), John Langdon (NH), Philip Schuyler (NY), Theodore Foster (RI)
The short answer is: Federalists voted for it, and Democratic-Republicans voted against it.
If I'm reading the House and Senate Journals correctly, the relevant legislative history is as follows:
1. 1798-06-08: The Senate approves the bill. https://memory.loc.gov/cgi-bin/ampage?collId=llsj&fileName=0... https://www.govtrack.us/congress/votes/5-2/s99
The bill passed by a vote of 17-6 (GovTrack reports this as 16-7 for some reason). Of the 12 members of the 1st US Congress who were senators in the 5th US Congress, two (John Henry and John Vining) had resigned well before the summer of 1798, and four (James Gunn, John Langdon, Philip Schuyler, and Theodore Sedgwick) did not vote on the bill. The remainder voted on straight party lines:
* Affirmative: Theodore Foster, Benjamin Goodhue, John Laurance, Samuel Livermore. (Federalists)
* Negative: Timothy Bloodworth, John Brown. (Democratic-Republicans)
2. 1798-06-21: The House approves the bill, with amendments. https://memory.loc.gov/cgi-bin/ampage?collId=llhj&fileName=0... https://www.govtrack.us/congress/votes/5-2/h90
The bill passed by a vote of 46-40. Of the 9 members of the 1st US Congress who were representatives in the 5th US Congress, one (William L. Smith) had already resigned at the time the bill was considered, and two others (Thomas Hartley and Josiah Parker) did not vote. The remainder voted as follows:
* Affirmative: Abiel Foster, James Schureman, Thomas Sinnickson, George Thatcher. (Federalists)
* Negative: Abraham Baldwin, Thomas Sumter. (Democratic-Republicans)
3. 1798-06-22: The Senate concurs in the amendments. https://memory.loc.gov/cgi-bin/ampage?collId=llsj&fileName=0...):%230020505&linkText=1
Either there was no vote here, or the yays and nays were not requested. The Senate Journal just says that they took into consideration the amendments and resolved that they concur in the amendments.
That's aside from that congress in 1798 probably didn't have a majority of founders etc.
To answer your question, the judges should cite their own judgement.
On that bit about you seeing what all others fail to see, I suggest that you look up "The Dunning-Kruger Effect".
I suspect your down votes are due to the use of the phrase 'cop out'.
I say this as someone that admire Cook's leadership on this issue but let's not be confused: at the end of the day he doesn't answer to you or me but to Apple's shareholders. I understand he needs to seem reasonable to the average American that may not understand Apple's argument as well as most people on HN but we can't let him sell us out in the process.
What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff.
I haven't read this document in detail, but from what's quoted here it seems pretty obvious that the judge's argument isn't strong enough without reference to the law's creators. Its entirely plausible to imagine serious lawmakers making an AWA that was a "mechanism for upending the separation of powers". Only knowing the involvement of these same lawmakers (in part) in the law's creation is this interpretation ruled out- "orginalism" certainly, but here justifiable.
Or why else would CISPA, which was publicly denounced and failed to pass make it into a (budget bill)[http://www.wired.com/2015/12/congress-slips-cisa-into-omnibu...].
Democracy in action.
Edit: autocorrect of coorption
Textual originalism is largely a fraudulent mechanism for justifying a right-wing position.
I personally am anoyed that, now, every purchase I make is a political statement. Or being lowered into thinking that, now, is different. Buy American!
Is that why you invest in a company? So it can express your views for you? I do it because I would like to be able to retire some day, not because I support their polital efforts.
Maybe, and maybe not, but remember that not all corporations are publicly traded on the stock market. Some organizations are incorporated under structures and tax rules like, say... the National Association for the Advancement of Colored People, a 501(c)(3) charity, or the American Federation of Labor and Congress of Industrial Organizations, a 501(c)(5) labor union, or the U.S. Chamber of Commerce, a 501(c)(6) business league, or Swift Boat Veterans For Truth, a 527 organization, or Universal Life Church, a 508(c)(1)(a) religious organization. All of these have engaged in free speech activities, often overtly political ones.
Some corporations are privately held and across the pond, the Crown itself is "a corporation sole that represents the legal embodiment of executive, legislative, and judicial governance" in the King or Queen of England (not relevant to US free speech so much but potentially interesting as a corporate structure).
Personally, I'd hope that a publicly traded for-profit corporation that I (partially) own would spend/invest its money wisely, to increase the value not only of my shares, but my interests in life in general. However, the value of my shares is one particularly compelling and immediate interest, and also much easier to measure results on than the others, and political spending may or may not be in my overall interest, so I agree that skepticism on such spending is warranted.
> I personally am anoyed that, now, every purchase I make is a political statement.
[sic]
Edit:
"Buffett, of course, has long centered his investment thesis on the idea that it never pays to bet against the U.S. economy in the long run."
http://www.marketwatch.com/story/warren-buffett-says-america...
"The Treasury sold $185.7 billion of securities (over $2.1 trillion in 2016) to finance the war. The public debt rose from $50 billion in 1940 to $260 billion in 1945.[2]"
https://en.m.wikipedia.org/wiki/Series_E_bond
... And definition of...
"Sometimes, a boycott can be a form of consumer activism, sometimes called moral purchasing. When a similar practice is legislated by a national government, it is known as a sanction."
https://en.m.wikipedia.org/wiki/Boycott#Notable_boycotts
Edit 2:
This is one of the startups at a pitch day I attended recently, so sinking karma on an edit/self reply...
http://the-citizenry.com/pages/about#philosophy
"We set out to build a company that celebrates the people behind our products. Our name is a reflection of the collective of individuals – artisans,"
I apologize in advance for getting a little belligerent but... Let me make you feel better about buying ridiculously marked up "craft goods" made by indiginous peoples by giving a small percentage of our profits back "to the artisans and their villages" (South America), in lieu of a competitive salary to that of a craftsmen working in the country they are sold (US). I am all for globalization and capitalism... just don't wax poetic about feel goods when I know how the sausage is made.
The magistrate's job is to apply and interpret the law. Lawyers study the circumstances under which laws were created for years before they can practice, and magistrates are on the whole even more educated in law than your average lawyer. His commentary is appropriate and helpful for fully understanding his logic.
The "relevant preceding decisions" include decisions specifying what canons of construction are used to interpret the meaning of law, and those decisions do hold out that legislative intent is a factor to consider when resolving the correct interpretation of words that can reasonably interpreted in different ways before considering that intent.
The context the law was originally written in is just fluff.
Fascinating how you contradict yourself. The judge's reason and conscience demand that he interpret the law as it was intended by those who wrote it. The notion that "the letter of the law" should prevail is completely lacking in a reasoned understanding of what language is and how it works, and the notion that judges should make decisions based on their personal prejudices is completely lacking in conscience.
"The government's position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law – which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it – would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress's superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction."