From: David Sternlight <david@sternlight.com>
Date: Sun, 21 Jul 1996 03:08:16 +0800
To: Sandy Sandfort <sandfort@crl.com>
Subject: Re: Netscape download requirements
In-Reply-To: <v0300760cae16b0bacf48@[192.187.162.15]>
Message-ID: <v0300760fae16bb3f479c@[192.187.162.15]>
MIME-Version: 1.0
Content-Type: text/plain


At 9:22 AM -0700 7/20/96, Sandy Sandfort wrote:
>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
>
>On Sat, 20 Jul 1996, David Sternlight wrote:
>
>> "9th Amendment
>>
>> The enumeration in the Constitution of certain rights shall not
>> be construed to deny or disparage others retained by the people."
>>
>> Nothing in here about ITAR.
>
>No David, there isn't.  That's because ITAR represents neither an
>enumerated nor unenumerated right of the people.  The application
>of ITAR to speech, however, is a violation of the 1st Amendment
>which is enumerated.

So now you're switching your ground to the First Amendment? Why can't you
argue straight out?

>
>> "10th Amendment
>>
>> The powers not delegated to the United States shall not be
>> construed to extend to any suit in law or equity, commenced or
>> prosecuted against one of the United States by citizens of
>> another State or by citizens or subjects of any foreign
>> state."
>
>You "accidentally" misquoted the 10th.  It actually says:
>
>	The powers not delegated to the United States by the
>	Constitution nor prohibited by it to the States, are
>	reserved to the States respectively, or to the people.

Slip of the editor, not a conspiracy. THe point is that it says "not
delegated to the United States", and as I showed below, powers which cover
ITAR were so delegated.

>
>> Nothing in here about ITAR.
>
>See my explanation of the 9th Amendment, supra.
>
>> "We the People of the United States, in order to form a more perfect union,
>> establish justice, insure domestic tranquility, provide for the common
>> defence,"
>>
>> ...
>>
>> "The Congress shall have power
>>
>> ...
>>
>> To regulate commerce with foreign nations, and among the several states,
>> and with the Indian tribes;
>>
>> ...
>>
>> To make all laws which shall be necessary and proper for carrying into
>> execution
>> the foregoing powers, and all other powers vested by the Constitution in the
>> government of the United States, or in any department or officer thereof."
>>
>> Looks like ITAR is covered there.
>
>Wrong.  Everything quoted above was adopted prior to the adoption
>of the Bill of Rights.  In other words, the 1st, 2nd,...9th and
>10th AMENDMENTS came after and modify (or amend, get it?) the
>clauses you rely so much on.

This is an unsustainable position for which you have no legal basis. Your
implied claim is that an amendment implicitly repeals prior language. As
we've seen from other amendments, if prior language is to be repealed that
is done explicitly or by reference in the amendment. There are some Supreme
Court cases because there are conflicts between the implicit content of
some amendments (the famous "penumbra of the Constitution") and prior
language. And we've seen many cases where even strict constructionists held
in Dicta that prior powers weren't implicitly repealed by the First,
particularly in speech cases. The famous "Freedom of Speech does not extent
to the right to falsely shout "Fire!" in a crowded theatre" is one. "The
Constitution is not a suicide pact." is another.

But Con Law is a bit off topic for this group, eh? Let's agree to disagree.

>Believe me, David, I don't think I could teach you anything.

That's both false and defamatory unless you're commenting on your own
shortcomings as a teacher. Some here will tell you that they've taught me a
lot, and that when evidence or logic are clear, I do alter my views. In the
instant case neither appertains, at least not so far.

Best;
David