From: nobody@neva.org (Neva Remailer)
Date: Fri, 14 Nov 1997 06:23:44 +0800
To: cypherpunks@cyberpass.net
Subject: Re: Br'er Tim and the Bug Hole
Message-ID: <199711132215.QAA07760@dfw-ix2.ix.netcom.com>
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Robert Hettinga wrote:
>At 7:45 pm -0500 on 11/11/97, Monty wrote:
>> As Michel Foucault used to say, "The only guarantee of freedom is
>> freedom itself."
>
>The world's foremost pseudomystical relativist cited to support an
>absolutist position. The logic escapes me. But then, logic, much less
>independent thinking, was never Foucault's strong point.

Physician heal thyself!  Much of your discussion consists of ad
hominem attacks with little content such as the paragraph quoted
above.

The Foucault discussion quoted is worth reading.  Unfortunately, it's
been a long time and I cannot provide a reference.

At any rate, the upshot of his argument was that there are often
attempts to ensure freedom, but in reality it can only be assured
through its exercise.

He gave the example of a building in France which was designed to make
people feel free.  Instead of winding little corridors and small rooms
where people would be locked away, it had a large open courtyard and
it was designed so that when you entered the building, everybody could
see you and you could see them.

Foucault argued that in the context of people who are free, this
building would have the intended effect.  In the context of a fearful
and oppressive society, the effect would be quite the opposite.
Everybody would feel that they were being watched all the time.

>> Put another way, "rights which are not exercised are lost."
>
>True enough, but it doesn't follow from your Foucault quote very
>much.  Besides, I'd rather say "because it can be done, it will be
>done."  Especially if it's better.

If Tim believes that a judge has committed a capital crime, I want to
hear about it.  If Tim and others fail to exercise their right to say
what they believe, then it is likely those rights will be suspended in
due time.

>So, by the same token, I would also say that if you're going to
>threaten a federal judge with death on a public email list, it might
>behoove you to use a nym and a remailer. Like you do, Monty. Using a
>nym and a remailer, I mean, not threatening a federal judge. :-).

It seems to me that Tim said "The judge in the Paladin case committed
a capital crime" and not "The judge in the Paladin case committed a
capital crime and should be gunned down in the streets like a dog."

Tim is a good writer.  If he meant the latter I am sure he would have
written the latter.  If anything, the term "capital crime" suggests a
legal proceeding.

Personally, I don't consider violation of oath of office a capital
crime.  But, the judge should be fired.  He clearly isn't taking the
Constitution very seriously.

>> Just because free speech is a right guaranteed under the Constitution
>> does not mean that is necessarily a safe right to exercise.  Let us
>> hope that Tim does not come to harm.  But, let us also give him the
>> credit he deserves for having the courage to speak his mind.
>
>Yes. Fine. Tim has courage. God bless him. Hope he enjoys his
>firefight.

I don't understand why you keep insulting Tim.  Your first post was
insulting and comments like these are likewise insulting.

>> I've been reading about a newspaper called the "Aurora" which
>> operated in the 1790s from Philadelphia.
>
>Yes. I read it too, when it came out. Franklin was my favorite
>patriot.  Aurora was founded by his grandson(?), if I remember. The
>one who went with Franklin to Paris, as a kid, right?

The book I am reading is called "The Aurora: A Democratic-Republican
Returns" by Richard N. Rosenfeld.

>> It made itself very unpopular with
>> Washington by claiming he was not the "Father of the Country".  It
>> made itself doubly unpopular with Adams for other less than
>> respectful, but astute, observations.
>
>Right. And then Adams passed the Alien and Sedition laws. And then
>the Supreme court took him out. Game over.

We must be reading different books.  The Supreme Court did nothing
while the Executive Branch ran rampant.  My guess is that the members
of the Court identified with the political faction represented by the
Adams administration.  Incidentally, it has only been during the 20th
century that the Court has protected the Bill of Rights in any
significant way.

After the editor of "The Aurora" was publicly beaten by Federal
troops, citizens of Philadelphia formed an armed militia and stood
guard outside the offices of the newspaper.  That's why it wasn't
suppressed.

Here's an example of what was going on (pp: 526-527):
> In the midst of this campaign [for the House of Representatives],
> the federal government indicted Matthew Lyon for sedition (October
> 5), arrested him (October 6), tried him without legal representation
> (October 8), fined him $1,000, and sentenced him to four months in
> prison (starting October 9).  His "seditious libel" was the claim
> that President John Adams has demonstrated "a continual grasp for
> power" and an "unbounded thirst for ridiculous pomp, foolish
> adulation, or selfish avarice," &c.  Today, Vermont Congressional
> Congressman Matthew Lyon is in jail."

The Alien and Sedition Acts had a built in expiration period at the
end of Adams's term so that they couldn't be used against the party
that passed them.  They also did not apply to speech against the Vice
President, Thomas Jefferson, who did not belong to the Adams faction.

When Jefferson was elected he pardoned everybody who was tried under
these acts.

Abigail Adams apparently wrote him about these pardonings.  She had
been quite enthused about the suppression of free speech in the United
States and was upset that people who insulted her husband, in her
view, would be allowed to go unpunished.  Jefferson's reply (page
902):
> I discharged every person under punishment or prosecution under the
> Sedition law, because I considered and now consider that law to be a
> nullity as absolute and as palpable as if Congress had ordered us to
> fall down and worship a golden image... [The discharge] was
> accordingly done in every instance without asking what the offenders
> had done or against whom they had offended but whether the pains
> they were suffering were inflicted under the pretended sedition law.
> It was certainly possible that my motives... might have been to
> protect, encourage, and reward slander; but they may also have
> been... to protect the Constitution violated by an unauthorized act
> of Congress.  Which of these were my motives must be decided by a
> regard to the general tenor of my life.  On this I am not afraid to
> appeal to the nation at large, to posterity, and still less to that
> Being who sees himself our motives, who will judge us from his own
> knowledge of them, and not on the testimony of Porcupine or Fenno.

The Constitutional mechanisms to preserve liberty all failed, except
for the election of 1800.

>> If they would only behave (i.e., go along with anything), then they
>> wouldn't have to be censored.
>
>Hogwash. What the conventional wisdom held, back in the 1790's, was a
>bunch of neoaristocratic justifications for the devine rights of the
>state, reminiscent of the devine rights of kings, and that George
>Washington, as the victor of the revolutionary war, deserved as much
>power as he wanted.

Abigail Adams (page 84):
> Bache [editor of the "Aurora"] has the malice & falsehood of
> Satin... But the wretched will provoke to measures which will
> silence them e'er long.  An abused and insulted publick cannot
> tollerate them much longer.  In short they are so criminal that they
> ought to be Presented by the grand jurors.

>Fortunately, a certain "nym" named Publius advocated the separation
>of powers in the constitution, which created a supreme court, which
>used Jefferson's Bill of Rights to shut all that crap down before it
>went too far, modulo a little jail time for those who crash-tested
>the idea.

1. Publius was John Jay, Alexander Hamilton, and James Madison.  Jay
and Hamilton were leaders of the party attempting to subvert the
Constitution.

2. The Federalist version of the Constitution was intended to have
aristocratic elements - the Senate and the President.  Adams even
suggested privately that the Senators should have life long terms and
that Senate seats should be hereditary.

3. The separation of powers failed completely during the Adams
administration.  The Federalists had control of the Congress, the
Executive Branch, and, I suspect, the Supreme Court.

4. The rights and freedoms of Americans were protected only by the
fact that the voters threw the bastards out.  Something to keep in
mind when people tell us that the voters are less trustworthy than
career politicans.

5. The Supreme Court did nothing.

6. Jefferson did not write the Bill of Rights.  He was in France at
the time and was pleased to hear these amendments had been added to
the Constitution.

Monty Cantsin
Editor in Chief
Smile Magazine
http://www.neoism.org/squares/smile_index.html
http://www.neoism.org/squares/cantsin_10.htm

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