[Foundation-l] Re-licensing

[Mike Godwin]

Anthony writes:

>> Actually, the difference is quite relevant in a courtroom,  
>> especially when
>> dealing with constitutional issues.  That's why I find it nearly  
>> impossible
>> to believe that Mike doesn't understand this.  How in the world can  
>> you
>> defend people's constitutional rights if you think they're made up  
>> out of
>> nowhere?  Why defend free speech if it's just a couple words some  
>> guys made
>> up and wrote down on paper?  The very nature of the legal system in  
>> the
>> United States of America is based upon natural rights.  "We hold  
>> these
>> truths to be self-evident".  Self-evident.  Not created by  
>> congressmen.

It is a common mistake to confuse the Declaration of Independence  
(which Anthony quotes above), which uses the rhetoric of natural  
rights, with the U.S. Constitution, which does not use that rhetoric.  
The first was published in 1776; the second was completed in 1787,  
with the Bill of Rights added in 1791. The reason for the addition of  
the Bill of Rights was precisely that the Framers and the voters came  
to believe that no concept of "natural rights" was adequate to  
guarantee protection of things like "the freedom of speech," even  
under a government of limited and specified powers.

Of course, any historically informed reading of the Declaration of  
Independence can see that its natural-rights rhetoric can be  
understand in ways that are consistent with the explicit creation of  
rights in the Constitution. To wit, we may be said to have the general  
natural right to create our own specific Constitutionally and legally  
guaranteed rights. (This is more or less what the Declaration of  
Independence says.)

But it's quite clear that the Declaration of Independence, standing  
alone, has no legal force. It's a rhetorical document, not a legal  
one, which may be why Anthony prefers quoting the Declaration to  
quoting the Constitution (in whose Amendments "the freedom of speech"  
is guaranteed). It should be noted that the Constitution does not even  
grant rights to Authors and Inventors. What it does, expressly, is  
give Congress the power to create such rights (without specifying what  
those rights might be). It would clearly be constitutional for  
Congress to change rights in copyright, or even remove them. Such a  
change is not the sort of thing that can be understood by any naive  
natural-rights theory of copyright.

Trying to cite the Declaration of Independence as the basis for your  
legal defense in a criminal case -- "Hey, I was just exercising my  
right to resist a bad king!"  -- is a good way to guarantee going to  
jail.


--Mike