[Fsf-friends] Fight and Wait for Freedom

[Ramanraj K]

,----[ Richard Stallman <rms@gnu.org> ]
| Whether PlayFair would be considered legal in the US is a hard
| question, given the details of what it does.  I think it is safer to
| host it outside the US, in countries where there is really no law like
| the DMCA.
`----


,----[ Anand Babu <ab@gnu.org.in> ]
| Fighting DMCA is no easy task.
`----

It never has been, as the US Supreme Court has struck down legislation
as unconstitutional in only a little  more than two dozen cases in the
past over 200 years.  But we are  in good company, and I would like to
share a few cases hoping that they can keep our spirits high.

Marbury  v.    Madison  2  L.    Ed.   60  (1803)  also   reported  at
http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm   is   always
traditionally cited for the proposition  that courts have the power of
judicial review - to  strike down unconstitutional legislation.  Chief
Justice Marshall  observed in his  landmark judgement, "It  seems only
necessary to recognize certain  principles, supposed to have been long
and well established, to decide it".

Long and  well established? Many lawyers like  Alexander Hamilton were
at that  time hammering the  concept of judicial review  into judicial
consciousness.

During  a Revolution,  North Carolina  had confiscated  and  sold tory
estates; to  protect the new  owners, the legislature enacted  that in
any action to recover confiscated land, the courts must grant a motion
to dismiss the suit.  Bayard brought such a suit, and Singleton made a
motion  for dismissal.   In this  case of  Bayard v.  Singleton (1787)
instead of  granting the motion, the  high court of  the state delayed
decision  and  recommended  a  jury  trial  to  settle  the  issue  of
ownership.  The legislature summoned the judges before it to determine
whether they  were guilty of  malpractice in office by  disregarding a
statute.  The  legislature found no basis for  impeachment but refused
to revise the statute.  On a renewed motion to dismiss, the court held
the  act  void,  because   "by  the  constitution  every  citizen  had
undoubtedly a  right to a decision  of his property by  trial by jury.
In  defense of  judicial review,  the court  reasoned that  no statute
could alter  or repeal the  state constitution, which  was fundamental
law, and submitted the case to a jury.

In the Ten Pound Act Case  (1787), a court in New Hampshire ruled that
an  act  conflicted  with  right  to  trial by  jury,  and  the  state
legislature demanded  impeachment of judges.   The judges courageously
stood by their decision, and reaffirmed it in another case also.

The past history of judicial review shows that even Judges have had to
risk their offices, to  boldly defend the constitution that guaranteed
rights and  freedoms.  None  of our freedoms  were won easily  and the
fight can sometimes be long and  tedious like the issue below that led
to a string of cases:

Dr.  Wilder Tileston, a  Connecticut physician wanted to challenge the
constitutionality of that state's statutory prohibition of the "use of
drugs  or  instruments  to  prevent  conception,  and  the  giving  of
assistance or  counsel in  their use"  and this case  is now  known as
Tileston v.  Ullman (1943).  Having lost his appeal in the Connecticut
Supreme Court of  Errors, he endeavoured to get  Federal Supreme Court
review.   The Court  observed  that Dr.   Tileston  `alleged that  the
statue, if  applicable to him,  would prevent his  giving professional
advice concerning  the use of  contraceptives to three  patients whose
condition of health  was such that their lives  would be endangered by
child  bearing, and  the  appellees intend  to  prosecute any  offence
against  the statute.'   It was  also contended  that the  statute was
violative of the XIV Amendment  of the Constitution which prohibited a
state from  depriving any person of  life without due  process of law.
The Court  held that  the proceedings in  the state courts  present no
constitutional question which appellant has standing to assert and the
appeal was dismissed.

Again  in  1961,  the  opponents  of  the  Connecticut  statute  tried
challenging  the law,  this  time  with patients  and  a physician  as
plaintiffs.  This was Poe v. Ullman  and Buxton v.  Ullman (381 US 479
[1965]), wherein,  Justice Frankfurter, by  a narrow majority  of 5:4,
held the controversy not to be  fit for adjudication, as no one had in
fact been  injured, jailed or fined  under the said law,  and held the
`Court  cannot  be  umpire   to  debates  concerning  harmless,  empty
shadows".

The statute's opponents were  not mollified and became more determined
to challenge  it.  They  opened a birth-control  clinic in  New Haven,
advertising its  existence, and the  state decided to  prosecute them.
They finally had `standing'. This  was in Griswold v. Connecticut (381
US 479  [1965]), where  the Supreme  Court declared the  law to  be an
unconstitutional infringement  not only of Amendment XIV,  but also of
Amendments  I,  III,  IV, and  IX,  by  way  of `penumbras  formed  by
emanations'.

Even simple pleasures of life like using a condom, listening to music,
or writing  code cannot be taken for  granted.  Sometimes legislatures
have other  plans for  us, and  there is no  other alternative  but to
challenge their  constitutional validity  before the courts.   When we
have proper  e-Governance programs  in future, these  legislative acts
will refuse to compile returning  errors and abort before getting life
to start harassing people.

Regards,
Ramanraj.