Infamous dotcom-founder/sex predator raises $12 on Kickstarter

[bwv812]

@LemoUtan

But you didn’t!

It was said a long, long time ago, near the beginning of the thread. It started with:

@petehand

The point is, for many if not most crimes the Federal Government agencies are prevented by the Constitution from getting involved.

To:

@waetherman

The Feds cannot get involved in every crime - and I don’t mean from a capacity perspective, I mean from a jurisdictional and constitutional one. The Feds cannot get involved in a murder, say, unless it involves some kind of federal issue, such as happening on federal land. This is why, for instance, the Feds prosecute some murders as “civil rights violations” - it’s not that a federal murder charge doesn’t exist, it just cannot legally be applied unless there is jurisdiction. One of the potential ways to invoke jurisdiction is through the interstate commerce clause, which gives the Feds jurisdiction in matters related to things being bought/sold/transported across state lines.

Culminating with the very good explanation:

@Kii

What you may not know is the US constitution specifically lists the powers of the federal government. Any power not specifically listed as belonging to the federal government belongs to the states. The US congress can only make a law if the area the law regulates is one of the ones listed. For example, congress can make laws about coining and valuing money because the power to coin money and regulate its value is specifically given to Congress.

One of the powers congress uses a whole lot, and has stretched to some pretty amazing lengths, is the commerce clause. It says congress has the power to regulate commerce with foreign nations, among the states, and with the Native American tribes. This is where the whole crossing-state-lines thing comes in. If some activity involves crossing state lines, then that activity is related to interstate commerce and congress can make laws regulating the activity. So while congress cannot constitutionally make a law that says “transportation of X is illegal” it can make a law that says “transportation of X across state lines is illegal.” So many of the federal criminal laws must involve crossing state lines so congress can point at the commerce clause and say “see?! The constitution says we can totally do that.”

Like @Kii said, you need a constitutional hook, and the commerce clause is a big one. And like @Kii and @waetherman also said, there are others, like the power to coin money or to legislate civil rights. For some reason you chose to ignore most of his message, and the stuff I said that echoed it.

@bwv812

Because the federal government doesn’t have general police powers. They can only legislate in the areas the constitution authorizes them to do. Unenumerated powers are reserved for the states. So the federal government needs a constitutional hook to allow them to actually decide that something is the law of the land.

As has been mentioned, the commerce clause has been used to pull a lot of things into the federal sphere, as it allows the government to regulate things that affect interstate commerce.

And:

@bwv812

As myself and others have said before, the federal government (and “federal” is the correct term since it invokes the concept of federalism, which refers to how power is divided between the federal and state governments) is limited by the Constitution to only the powers enumerated in the constitution. It can’t make any laws it wants, but needs to have some constitutional justification for the laws. One of the enumerated powers that has been used to justify a lot of federal laws is the commerce clause, which allows federal regulation of commerce between the states. This has traditionally been thought to require the transfer of money, people, or things across state lines in order to be interstate commerce, and this explains why there is an “across state lines” requirement in many federal laws (especially older ones).

If the federal government is not relying on the commerce clause (or if what they’re regulating is inherently related to interstate commerce), then there is no state-line requirement because they have an alternate basis for legislating.

But sure, keep pretending that no one has said that the federal government can only legislate under the commerce clause and/or must require something to be moving between state lines.

@LemoUtan

The thing is, though, that despite all that you’re the only one to have come out with that bald - and I have to say gobsmacking - answer I asked for but didn’t really expect (because why not earlier - it would have saved so much time).

Maybe the reason nobody said it is because you seem to think that saying the state-line requirement of the Mann Act is a Constitutional requirement would require the constitution to say “something like ‘Congress shall make no law universally applicable to all states without its transgression thereof requires movement across at least one state boundary,’” which is to say that you’ve studiously ignored everyone saying that the Constitution only allows the federal government to legislate within their enumerated powers, and that the commerce clause is only one of those enumerated powers (albeit the most important one).

[LemoUtan]

@bwv812

It was said a long, long time ago, near the beginning of the thread. It started with:

Jeez. I can’t believe you just did that. My “But you didn’t!” wasn’t referring at all to the material covered by that long list of citations you then proceeded to cite and further discuss. If that was a deliberate misreading of what I intended then hats off to you. It was a masterstroke, demolishing me unutterably to dust. You have to admire that kind of - I don’t even have a word for it.

Here’s the context.

ME: “what I’m actually asking is why your nation cannot seem to make a law at the national level which applies (by default) at the state level (without further ado) without its transgression being required to involve a transition between at least two of those states”

YOU: "And, as has been answered multiple time, we can. "

ME: “But you didn’t!”

I take it that the “we” of the “we can” in your answer was, loosely speaking, the lawmakers of the USA, So, by anaphora, this corresponds to the “you” in my following “you didn’t”. And not at all to a the completely different you of YOU you. But of course that context had been omitted.

Because I was referring to that particular law (the Mann Act) which did not avail itself of that “we can”. Granted, the “a law” in the earlier “you cannot seem to make a law” was more general, but I thought the exasperation carried by the “but you didn’t” would have made it obvious that this was what that last remark was about. I did toy with the idea of saying “But in the case of the Mann Act you didn’t!” but I really didn’t think it necessary by then.

I hope that was a genuine mistake (which I freely admit that both of us contributed to) but it’s so shocking I was, just, wow man - you must really … wow!

[bwv812]

@LemoUtan

Because I was referring to that particular law (the Mann Act) which did not avail itself of that “we can”.

You asked whether it’s possible to make laws of general applicability without reference to whether something crosses state borders. And like I said, we can, so long as there is a constitutional basis. So let me ask you what you think the constitutional basis for the Mann Act is: the minting of coins? Civil rights? Admiralty? Copyright? No? Oh, maybe the commerce clause, so long as interstate commerce is affected? Could be.

I mean, I really don’t get it. You say you understand federalism and restricted federal power, but then you seem to expect that the federal government can make every law applicable to all states, even though we’ve repeatedly said you need a constitutional basis for all federal laws. I’m not sure how that’s consistent with limited federal powers, but whatever. The Mann Act’s constitutional basis didn’t allow it to be a general law without regard to state lines. But that doesn’t mean that no laws can be made without regard to state laws: we definitely can make general laws without regard to state lines. Copyright is an example. But this is just me repeating what I said after my “we can” comment, so I expect you’ll purposefully mangle this again. Everyone else who has tried to point you in the right direction has had the good sense to bow out by now, and I think I’ll join them.

[LemoUtan]

@bwv812

Maybe the reason nobody said it is because you seem to think that saying the state-line requirement of the Mann Act is a Constitutional requirement would require the constitution to say “something like ‘Congress shall make no law universally applicable to all states without its transgression thereof requires movement across at least one state boundary,’”

That’s kinda ridiculous. If by ‘nobody’ you mean ‘anyone other than you’ (apparently I must now spell out all pronominal references lest your laser-like seeking for an interpretation least favourable to me prevail) than that particular remark has been so recently presented that you’re the only one to have (so far) looked at it. And - as is becoming increasingly usual - you’ve omitted my following remarks which would have allowed a far more flexible response.

[LemoUtan]

@bwv812

So let me ask you what you think the constitutional basis for the Mann Act is: the minting of coins? Civil rights? Admiralty? Copyright? No? Oh, maybe the commerce clause, so long as interstate commerce is affected? Could be.

Let me answer you. The commerce clause.

@bwv812

… you seem to expect that the federal government can make every law applicable to all states,

Please show me where I said any such thing.

@bwv812

we’ve repeatedly said you need a constitutional basis for all federal laws

What have I said which would lead you to believe - not only that I have no problem with that - that I’ve ever doubted it.

@bwv812

The Mann Act’s constitutional basis didn’t allow it to be a general law without regard to state lines. But that doesn’t mean that no laws can be made without regard to state laws: we definitely can make general laws without regard to state lines.

And there it is. My perplexity was with the Mann Act, which has stateline crossing embedded in it. I have never been perplexed by federal laws which don’t have stateline crossing embedded in them. I don’t know why (a) you keep bringing them up and (b) you imagine I think they cannot be made. They have no bearing at all on the perplexity discussion.

[bwv812]

So you’re perplexed that the Mann Act, which is based on the commerce clause, has an across-state-lines requirement. Even though you know that the commerce clause only allows for the regulation of commerce between states (and foreign nations, and “Indians”). It’s a mystery, all right.

[LemoUtan]

@bwv812

So you’re perplexed that the Mann Act, which is based on the commerce clause, has an across-state-lines requirement. Even though you know that the commerce clause only allows for the regulation of commerce between states (and foreign nations, and “Indians”). It’s a mystery, all right.

Nope. I am (or was) perplexed that the Mann Act, which is based on the commerce clause, which has an across-state-lines requirement, could not have been based on some other (let’s call it ‘clause’) which, like other federal laws, have no such across-state-lines requirement. Laws which you (I mean the law makers of the USA) are perfectly capable of making as you (by which I mean YOU) keep reminding me of for some reason.

It’s now ‘was’ because you explained that ‘at the time the Mann Act was made’ the commerce clause was the only means available.

See. Apart from your last piece of snark, you can play nice.

[bwv812]

@LemoUtan

Nope. I am (or was) perplexed that the Mann Act, which is based on the commerce clause, which has an across-state-lines requirement, could not have been based on some other (let’s call it ‘clause’) which, like other federal laws, have no such across-state-lines requirement.

And it’s only taken you about 20 posts to identify the source of your confusion, which is a bit surprising given the simplicity with which you have finally articulated it. Well done.

If you could cram any old law into the enumerated powers, that wouldn’t be much of a limitation on federal government, would it? Maybe the commerce clause was used because it’s the only one that provided a plausible basis for the law?

@LemoUtan

It’s now ‘was’ because you explained that ‘at the time the Mann Act was made’ the commerce clause was the only means available.

No. The commerce clause remains the only likely candidate, it’s just that commerce clause doctrine has expanded so much that you could likely claim that any prostitution affects interstate commerce, even if done wholly within one state. There has been push-back on such a broad interpretation of the commerce clause, however.

[LemoUtan]

@bwv812

And it’s only taken you about 20 posts to identify the source of your confusion, which is a bit surprising given the simplicity with which you have finally articulated it. Well done.

I refer the honourable gentleman to my third post, the twelfth post in this entire thread, in which I say:

“The thing I can’t wrap my head around is that crossing a state line seems to add another component to a crime and I just can’t imagine how that could possibly matter, criminally …”

@bwv812

No. The commerce clause remains the only likely candidate, it’s just that commerce clause doctrine has expanded so much that you could likely claim that any prostitution affects interstate commerce, even if done wholly within one state. There has been push-back on such a broad interpretation of the commerce clause, however.

OK. I was just trying to be brief. At some point you did say ‘at the time’ and I just picked something close. I’ve now looked back and found your “because the constitution requires it (or was understood to at the time the law was written)”. I appreciate that the detail is a little more than that, obviously. (Or maybe not obviously).

[bwv812]

@bwv812

I am (or was) perplexed that the Mann Act, which is based on the commerce clause, which has an across-state-lines requirement, could not have been based on some other (let’s call it ‘clause’) which, like other federal laws, have no such across-state-lines requirement.

And you claim you articulated this perplexion when you wrote this:

@LemoUtan

The thing I can’t wrap my head around is that crossing a state line seems to add another component to a crime and I just can’t imagine how that could possibly matter, criminally

And as the response indicated, the state-line requirement is what gives the federal government jurisdiction.

I’m not sure how you think this quote can be meaningfully read as you wondering why they don’t try to stuff this crime into one of the other enumerated powers, and not the commerce clause. So your words talk about components to a crime and criminally meaningful, but in your heart you were wondering why we can’t call this a copyright/civil rights/coinage/admiralty/taxation statute? I’d totally buy that.

@LemoUtan

I’ve now looked back and found your “because the constitution requires it (or was understood to at the time the law was written)”. I appreciate that the detail is a little more than that, obviously. (Or maybe not obviously).

The detail might be the words directly before you started quoting:

@bwv812

the reason the state-line requirement exists is because the constitution requires it (or was understood to at the time the law was written)

[catgrin]

That’s quite alright. I’ve tried to answer the question, “why your nation cannot seem to make a law at the national level which applies (by default) at the state level (without further ado) without its transgression being required to involve a transition between at least two of those states,” but it seems that you’re not getting the answer. Here’s a link to the U.S. Code (which is not the same as the Constitution!):

http://uscode.house.gov/browse/&edition=prelim

In it, you’ll find that most laws do apply to multiple states, but not all. It just depends on the type of law. Our U.S. Code laws are mainly designed cover multiple states, because they are federal, not state, laws. If you look under “mining” you’ll see laws that deal with individual claims on single properties. That’s because of the “General Mining Act of 1872” which made mining laws into federal laws (protecting prospectors during the California Gold Rush from local rip offs).

So, in the case of mining, it was felt that federal intervention was needed, and state laws must now obey those federal laws - even if no one crosses a state line. It’s always possible for a new constitutional Amendment to allow a new type of code. There’s no prohibition of that.

@LemoUtan

So I pose the same to you - are you willing to respond with the simple statement “because the Constitution won’t allow it”? It’ll trip my lightbulb.

I’m sorry, but I can’t simply say “because the Constitution won’t allow it”. The Constitution is a living document, and the above example shows that you can always change it to allow new law. I think the legal confusion here may stem from the two sources of our federal law. The Constitution and all its Amendments are - without question by anyone - the highest law of the land. U.S. Code law is a different beastie. It rests at a federal level, but ever so slightly below the Constitution. That’s the form of law that no one wants overriding local law without good cause.

Whenever a federal law is used in place of a local law, it’s a better then good bet that the federal law has already been through Judicial Review by SCOTUS. Of course they checked. That’s what Judicial Review is. Some federal laws may last for years without Review until a key point comes into question, at that point, SCOTUS has the right to either completely remove the law or just edit out the sticking point. Any federal law that has passed Judicial Review is considered to be both a federal law and in full compliance with the Constitution - that’s why those laws are held higher than local laws.

States do have the right to “nullify” unconstitutional federal laws - that state right is in the Constitution - but our federal courts have repeatedly rejected this idea when put into practice by individual states. For anyone successfully question a federal law would probably take a majority (or at least a heavy minority) of states.

So, in conclusion, I guess my answer summed up is this: You can’t say “the Constitution can’t change” because it is a living document. It can always be changed. Anything it can or can’t do today it may or may not do tomorrow. You could always include the wording you’re suggesting . . . but then someone could come along and strike it out.

Again, hope that helps rather than blurs the issue further!

[LemoUtan]

@catgrin

I’m sorry, but I can’t simply say “because the Constitution won’t allow it”.

No need to apologise! I never really expected - after all of the discussion this has engendered - that there ever would be a simple answer to my original question otherwise I’d’ve got it by now. Which seems reasonable, given the nature of the US system of internal semi-nation states. I’m not going to get the answer “because X” where X is a simple sentence which instantly elucidates with blinding clarity why the Mann Act had no choice but to incorporate an explicit stateline-crossing component.

The kidnapping differences you mentioned earlier, with California’s and Nevada’s different punishments and definitions is slightly different however. Simply by saying that even just the definitions are different (I’m not sure you event need to invoke the penalty differences) in at least two of the states instantly explains why you can’t have a federal kidnapping offence until you have a stateline-crossing event. That one is blindingly obvious.

It’s still a bit odd from an outsider’s perspective that a certain nation can’t seem to have a completely uniform definition of something like kidnapping, but that’s just prejudice and - as somebody pointed out a million posts ago - it’s not always necessarily a bad thing to have a certain flexibility in your legals given that you’re running a federally based system. It would of course be pointless - in a centralised system - to ‘allow’ regions to have their own definitions for other than cosmetic purposes presumably designed to mollify the locals to let them think they were autonomous.

So, many thanks for your time.

[Dave_Baxter]

@LemoUtan

The thing I can’t wrap my head around is that crossing a state line seems to add another component to a crime and I just can’t imagine how that could possibly matter, criminally

I’m pretty sure no one has mentioned this yet (though this is a loooong thread and I did only skim parts of it) but I’m surprised no one has brought up the premeditated/planning aspect of this, which would go as follows:

Laws are often crazily imperfect ways to address the issue of intent - there’s different “Degrees” of murder and there’s possessing drugs and then dealing drugs (or possession with the intent to distribute, etc). each of which changes the level of the crime and the consequences.

Crossing state lines generally insinuates a certain premeditation and/or intent of an act that is not as obvious if state lines are not crossed. If an adult has sex with a minor without crossing a state line, the story behind how this rendezvous occurred could be literally anything and the prosecution (and defense) would have to figure that out. If crossing a state line is involved, this instantly involves a likely premeditation of the act on a level that isn’t as obvious without, i.e. the perpetrator obviously chose to cross a state line for a reason consciously associated with the crime. Now maybe just maybe this isn’t why a state line was crossed, but the likelihood of that is slim. And much like drug possession vs. distribution laws, wherein simply having a certain amount of a drug on someone’s person automatically upgrades the perpetrator to a “dealer” regardless of whether they were in fact caught actively dealing, laws are rarely well thought out in that regard, I’m sure that’s true in the UK as it is in the US.

So in short: it’s possible for a crime to be precisely the same whether there is a state line crossed or not, but the likelihood of the crime being more premeditated and malicious is much higher when the line crossing is included, in the same way that, supposedly, possessing a greater weight of drugs makes the likelihood that one is dealing much much higher. Which is why these things in and of themselves are a crime. Then the reason line crossing becomes “federal” is simply jurisdictional.

[bwv812]

@catgrin

Whenever a federal law is used in place of a local law, it’s a better then good bet that the federal law has already been through Judicial Review by SCOTUS. Of course they checked. That’s what Judicial Review is. Some federal laws may last for years without Review until a key point comes into question, at that point, SCOTUS has the right to either completely remove the law or just edit out the sticking point.

This is absolutely false. Between Congress and agencies, hundreds and hundreds of federal laws are passed or amended every year. The Supreme Court currently hears about 80 cases per year, and many of them are about old constitutional principles like first and fourth amendments, or on the constitutionality of state laws. Very, very few laws are ever challenged to the Supreme Court level.

@catgrin

States do have the right to “nullify” unconstitutional federal laws - that state right is in the Constitution - but our federal courts have repeatedly rejected this idea when put into practice by individual states. For anyone successfully question a federal law would probably take a majority (or at least a heavy minority) of states.

Nullification is a wing-nut theory that has no basis in either the law or the constitution: states don’t have this right.

[LemoUtan]

@Dave_Baxter

So in short: it’s possible for a crime to be precisely the same whether there is a state line crossed or not, but the likelihood of the crime being more premeditated and malicious is much higher when the line crossing is included

Despite quoting only part of your summary, I did read the whole thing (I’m required to state this explicitly now lest I be accused of something or other). It’s an interesting reason. I suppose it’s at least as plausible as trying to squeeze ‘morally questionable transactions’ between human beings under the auspices of the commerce clause (even though slavery, even though no tax [at the time]).

Evidence of intent? I was ready to be a bit more argumentative with the body of your post. E.g. why isn’t moving from, say, Chicago to Bloomington equally indicative of intent. Or even from St Paul to Minneapolis? But obviously (duh!) even though it might be, it could never be enough to make it federal.

EDIT - confused myself there. That was the whole point wasn’t it, to not require state transitions for federal/nationally applicable ‘people’ crimes, but, states being what they were it’s difficult to arrange without that.

So. Yes. I suppose there’s that.

[zerianis10]

Supposedly according to the law, it does make it ‘worse’ by making it so that federal authorities instead of state authorities have to step in to take over the onus to catch you.

[L_Mariachi]

This may be the most informative post I’ve ever seen on here. Thanks.

[L_Mariachi]

Please differentiate between states nullifying Federal laws and jury nullification, which is hardly a wingnut theory, c.f. Peter Zenger.

[bwv812]

@L_Mariachi

Please differentiate between states nullifying Federal laws and jury nullification, which is hardly a wingnut theory, c.f. Peter Zenger.

The judicial system and the Constitution explicitly appoint juries to be finders of fact, and to apply those facts to the law in reaching a verdict. Because juries find fact and apply those facts to the law, it’s difficult to know if a jury that finds someone innocent is nullifying a law or if they simply didn’t think there was factual support to warrant a guilty verdict. And because the Constitution provides for trial by jury, it is inappropriate for judges to second-guess juries and reverse their verdicts. So if a jury decides to ignore the law and find someone innocent, thus nullifying the law as applied to that person (which is different than nullifying the law in general, which is what state nullification would seemingly do), the judge does not explicitly know that they are performing nullification and under the Constitution the jury has the right to find someone innocent. The judge has no basis to second-guess their decision, and even if he did it is considered illegitimate to overturn a jury finding (typically the most a judge will ever do is set aside the verdict and order a new trial, though in very rare cases a judge will engage in what is largely a legal fiction of granting a renewed judgment as a matter of law, but only if the motion for judgment as matter of law was made before the trial went to the jury). On the other hand, there is no constitutional support for state nullification, and indeed the supremacy clause explicitly says that federal law is the supreme law of the land.