[Foundation-l] Re-licensing

[Mike Godwin]

Anthony writes:

>> 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.

In an effort to add some light rather than heat, let me say this in  
response:

It is a common mistake to confuse the Declaration of Independence  
(quoted 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.

The Declaration of Independence is not part of "the legal system in  
the United States of America." It's a rhetorical document, not a legal  
one.

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 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 natural-rights theory of  
copyright.


--Mike