In doing research for the GoPets new EULA, Erik dives deep into constitutional law, the 9th Amendment, and Marbury v. Madison - and finds unexpected parallels to virtual world governance.
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In doing research for the GoPets new EULA project I have been reading up on constitutional law as fast as possible. There are two books that I want to share with you: first is an easy to read book on the Ninth Amendment – often called the “silent amendment”. The other book is a popular college text review of Constitutional Law. Both of these books are fascinating to me for they are teaching about whole areas that I had no prior awareness of – again educated in Aerospace Engineering, and being a programmer and a gamer I have never really thought about the deeper basis of law until this summer.
First on the 9th Amendment (1791) - **The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ***
Such a short Amendment – just a single sentence long! What does it mean? It looks so simply, but it simply says just because the Constitution does not mention a right directly, does not mean that government should not assume the ability to deny these rights. It is a fascinating read to find out the 9th Amendment is a bug fix (as all of the Amendments are) to get the original 13 states to ratify the Constitution. If it was not for this very Amendment the USA as we would have known as a federal confederacy of states would have collapsed – most likely Britain or France would have been able to re-take these fractious 13 states.
The problem with the all of the other rights enumerated in the Bill of Rights like Free Speech, Right to Bear Arms, and so on, was that a large fraction of the founding framers of our country worried that some later idiot would forget that we revolted against a king and that all along we wanted a land of true liberty for the people. Just because the bill of rights does not say you have the right to wear a hat – who has the sovereign power in the USA to decide your hat wearing status? The government or you? It might seem like a ridiculous question, but today in Western Europe the bastion of all that is good about Democracy they are actively governing or considering governing what sort of clothes Muslims may be permitted to wear in public.
My reading of the 9th Amendment is simple, the powers of the government are narrowly described in the Constitution, and any right not discussed by default belongs not to the individual states, but instead to individuals. Turns out that while I vote Democratic lately, I have been registered Libertarian for the last 10 years, from being registered Republican before that. (I felt the Republican party after I realized that they were not financially conservative as advertised and I find no reason for government to be involved in moral questions.)
To me more profoundly, many of the Amendments and Federal Laws enacted to protect liberties and freedoms I feel are unnecessary from the very beginning with the 9th. Slavery should have been profoundly illegal from the very beginning of our country for no other abominable institution could be worse than slavery for a country founded on libertarian principles. Second, women, minorities, and the land-less all should have the full rights to vote from the start. The entire 14th Amendment should have been unnecessary, and so on.
Okay that’s great Erik so the 9th is amazing but what’s the point? Well it turns out that the Constitution means many different things to many different people. Being an Engineer I assumed that when I watched a TV drama and they mentioned ‘that law is unconstitutional’ that it actually means something specific. Well just like when TV shows discuss computer games it is the same stinky pile of BS.
Here is my rude awakening from Chermerinsky’s Constitutional Law book: The Constitution is an interpreted document, being of relatively few words, it cannot be used to find specific answers to real-world cases. So you have to read it and then make an opinion of what you think the Constitution means in your particular situation. WTF!? Seriously, here I thought the founding framers, the Supreme Court and all of the legal profession was following some sort of legal programming language for human behavior that was clean and elegant and self-consistent. Well, actually, maybe on good days. But most of the time the Constitution is a dirty rag being pulled apart to suit political agendas.
The first concept is how to interpret the Constitution? Should we read the actual literal words of the document or should we have a liberal understanding of the intent? Can the intent of the document even be precisely and reliable determined? Strict conservatives like Scalia and Bork want a very strict and literal reading of the document –why? Because they come from the religious right, Republican, and conservative movements they want moral issues like reproductive rights, immigration and so one determined at the state level and not the federal level and most definitely they do NOT accept that any right is reserved by the 9th Amendment. If it is not enumerated it does not exist according to these curmudgeons. Why the state level? At the individual state level they know that in Republican states they will be able to garner popular majorities to create restrictive moral laws, while they will not be able to get want they want for the whole country (e.g. CA, NY, OR, WA, North East) – at the Federal level they know their moral laws will fail constitutional tests like the 18th Amendment (1919) against alcohol (that enabled the Kennedy clan to amass a fortune in what was then drug smuggling) only to be later repealed with the 21st Amendment (1933). Often people confuse Democracy with individual rights. While of course you need elections for the people to have the power to hire and fire their government, you do not want all of your laws to be popularly decided. Especially not the natural rights, property rights and human rights laws – this is where democracies get in trouble when they have group fear or greed and the respond to propaganda and do evil things to minority groups like African Americans (slavery, etc.), women (no voting, etc.), the landless (no voting, etc.), Japanese (WW2 internment camps). You simply cannot allow a popular vote to be cast that removes human rights – human rights must be inalienable, not subject to routine popularity contests.
Obviously, being Libertarian, I find the strict, conservative, literal reading of the Constitution an intellectually decrepit self-serving political hack.
Amazingly the Constitution it self does not specify how to read the document, it does not say whether or not it should be read in the context of the times, or should it be strictly read. And more important than how it is read, it does not specify who gets to do the reading and the interpreting.
There are essentially four different entities who could be responsible for interpreting the Constitution: The Supreme Court, The Congress, The Executive Branch, or The People. (Chermerinsky only lists the first 3 branches of government and fails to list the people as possible entity with the power to read and interpret the Constitution – I feel this is a substantial error in his book – for our Declaration of Independence (which to my shock turns out not to have any legal authority) and our Constitution make multiple references for the ultimate sovereignty of the country to belong to the people.)
Here is the greatest example of how vague our Constitution really is and how vulnerable it is to interpretation: In 1800 John Adams was running for re-election against Thomas Jefferson and Aaron Burr. It was a heated race, but in the end Jefferson won the election, but before he took the POTUS chair a very dramatic grab of power was performed by John Adams and Federalists.
The Federalists were of course the group in favor of created a strong centralized government and weak states, and the Republicans at this time were in favor of strong states and a weak centralized government.
So what did John Adams do to get more power for the Federalists before losing the power of the Presidency? Well, his Secretary of State, John Marshall and John Adams quickly worked through congress a new piece of legislation that create 42 new federal circuit court judgeships. What is so exciting about 42 judges? Well, these judges would serve for life (rather than at the whim of Rove, Bush, Gonzales as in modern times), and these life-term judges were appointed directly by John Adams to server the platform and the goals of the Federalist Party. It was such a dramatic show down that this law for the 42 came into existence only 7 days before Jefferson took over power, and there was so little time that John Marshalls own brother who was the one with the FedEx quests to deliver the 42 commissions was able to deliver only 39 of them before the quest timer expired and Jefferson blocked the final 3.
Okay so what is so exciting about 3 judges blocked from getting their life terms, the Federalists were still ahead with 39 new Federalist judges right?
Well, we have here a genuine, juicy Constitutional crisis – does Thomas Jefferson actually have the power to deny these 3 their new jobs, despite the fact that these commissions were created and processed properly with the direct order of President John Adams and the Congress? In other words, was Jefferson following the legal code of the Constitution that just hours before he swore to uphold?
Again getting 39 of 42 is pretty good hitting, but one of these guys - William Marbury really wanted his job so he sued Thomas Jefferson’s Secretary of State James Madison for a Writ of Mandamus to actually force the delivery of job offer.
Congress just wanted to avoid the whole issue, so they decided to close the Supreme Court itself for 2 years! (WTF!? this seems to be unconstitutional & Chermerinsky says so in his notes.)
Why did this new Republican Congress want to keep the Supreme Court closed for 2 years, well it turns out that the Federalists had an extra ace under the table, not only was John Marshall the Secretary of State for John Adams, but he was also at the same time the Chief Justice of the Supreme Court! (Recently reduced to just 5 justices to also further increase the power of John Marshall).
So get this straight the lawsuit of Marbury v. Madison where John Marshall architected these new 42 new Federalist federal judgeships and Jefferson is denying the last 3 would be heard before the Supreme Court with John Marshall as the Chief Justice!! How convenient! (This would be a wet dream for Rove.)
So anyways, the case finally gets to the Supreme Court, and here is where John Marshall outplays everyone and shows of his Jedi Mind tricks. You would think that John Marshall would use his position to force Jefferson to do his bidding and get the final 3 appointed right?
Okay lets look at the ugly side of raw power. Suppose that Chief Marshall decided that Jefferson was acting illegally and proceeds to issue the Writ of Mandamus. What comes next? Actually nothing, Jefferson would have told the Supreme Court and Marshall to go piss off. The Supreme Court does not have any Supreme Army or even a Supreme Police to enforce its decisions (this is why their decisions are always called Opinions anyways).
*So Marshall thought to himself, * “F! F! F! I can’t force Jefferson to hire my guy, so WTF do I really want?”
Well it turned out that John Marshall went for the jugular vein and seized far more power then any of his contemporaries even understood.
Let me back up a step. Okay so Marshall needs to demonstrate 3 things if he is going to get his man Marbury the job:
#1 – Was pretty easy for John Marshall, there was plenty of public acknowledgement from both sides that there was a shiny piece of paper with lots of cool wax seals and stuff on it that says Marbury is a new federal judge. Jefferson’s weak claim was that the final delivery of the paper is the final conclusive element to the ritual of summoning for a federal judge. Marshall properly trashed this in his opinion.
#2 – Next, could individuals sue government branches or government officials if they do something illegal to deprive us of our rights? Absolutely Marshall opinioned in the mean-sounding legal language: “the government of the United States has been emphatically termed a government of laws, and not of men.” The whole point of rebelling against the King of England is this stuff of a government of laws and rights and not just the power of the men of government to use their discretion (that means you Bush, et al.)
#3 – Does the Supreme Court have jurisdiction to decide this matter? As a lay person I would have thought without a doubt that if you are going about suing the sitting President and Secretary of State for the relatively exotic legal Writ of Mandamus on the Executive Branch of the government that the Supreme Court would of course be the venue and not your local state court or some circuit federal court. However, in a fascinating maneuver, Marshall sprints ahead of both Congress and the Executive branch in terms of the ultimate power to read and interpret the Constitution – and even more amazing is the way he does this is by declaring that the Supreme Court (read Marshall) does NOT have the jurisdiction or the power to decide this case!!
Side note: I honestly had absolutely no clue until I read this book about Marbury v. Madison that there could possibly be such ambitious political machinations from the Supreme Court – I mean I knew that the Justices are in essence political appointees, but… anyways, read on to see what this guy did:
Marshall first looked at the Judiciary Act of 1789 that when read one way (again the interpretation thing) indeed grants Marshall Original Jurisdiction (formal real right and obligation to hear this case). Okay so Marshall has #1, #2, and #3 and that would leave Marshall in a box where he tries to force Jefferson to hire guy, but he does not want to do that for if he tries and Jefferson tells him to piss off, then Marshall will have permanently maimed the Supreme Court and made much weaker when acting against the Executive Branch.
Another unusual thing about this case is usually Justices first check to see if they have jurisdiction before hearing the rest of the case for they naturally do not want to waste time listening to both sides of a case, do a bunch of thinking and opinion writing if in the end they are just going to throw all the work out in the end.
Marshall is a smart guy, so why does he wait until the end to decide if he has jurisdiction? Well establishing the idea that people have the right to sue the men of government is clearly a good thing to accomplish, and also pointing your finger at Jefferson and saying he is wrong in not hiring his buddy is at least emotionally satisfying (one for the people, and one for yourself – fair enough).
But in the end Marshall MUST find a way for the Supreme Court NOT to have jurisdiction over this case. If he can find a way to say he does not have jurisdiction then he can at least say Jefferson was wrong and also get that suing the government thing going. Marshall instead decides snatch a huge victory and a big gulp of power by finding away to take away his power to hear this case – how does he do this?
Marshall declares that the Judiciary Act of 1789 is now UNCONSTITIONAL!
Hold it, before you yawn, you must realize this – Marshall just declared that a law that Congress took the time to bring into existence must now disappear and be destroyed by the Opinion of the Supreme Court. Marshall just seized a permanent and lasting power to interpret the Constitution and declare laws legally sound or unsound according to the Supreme Court’s reading and opinion about the Constitution. That means the Congress who writes the laws, or the Executive branch that carries out the laws or even the people were the sovereignty of all law is derived, all three of these groups can get together whenever they want to elect politicians, write-up laws, and carry laws out, but any time the Supreme Court may step in and say “game over, na-ah, do-over”.
What is astonishing about this is that no where in the Constitution does it say that the Supreme Court of the land is the final arbitrator of the fidelity of laws to the founding charter of the United States.
All this does is makes me realize that the task before us in creating a more fair EULA for GoPets is a much larger, and much more frustratingly open-ended task than I had imagined.
We have to consider when the EULA is read, and it is unclear how to treat a particular case, whose interpretation of the EULA should be used? Management of GoPets? The citizen-run tribunals? Everyday citizens directly themselves? An appointed set of legal scholars?
In the end our EULA is going to have to be an a best effort expression of a set of conduct meant to protect the rights and interests of our player-citizens that does its best to be readable – and that people’s expectations of how the EULA and codes of conduct are supposed to behave match what we have written down and much more importantly match what actually happens.
-Erik
Originally posted on LiveJournal
anonymous — August 25 2007, 10:56:26 UTC
Kudos to you for taking time to read (and write) about constitutional law in such depth. All of that does rather demonstrate, as you point out, the very great dangers in a vague constitution, one in which the powers are not strictly separated, one in which the judiciary is not truly independent of the other institutions of state, or one in which the powers of each institution of state are not strictly enumerated.Although I see your point about the religious right in the US who want a very narrow reading of the 9th amendment to the US constitution to restrict other people's substantive rights unduly, the problem there is not a problem with literal reading in the abstract, but a problem with what these particular people want to do with this particular literal reading of this particular constitution. Generally, as you have perhaps discovered, it is far better for a constitution to be detailed and unambiguous from the start, so that literal reading is the only viable option, *and* one that produces the right substantive results. However, a constitution cannot both be sufficiently unambiguous to avoid the sorts of abuses of power and potentially disastrous political instability about which you have read, and be easily readable at the same time. The solution? A detailed, precise and comprehensive constitution, accompanied by an easy-to-read guide that sets out the basic principles, but is not itself a source of law.Ashcroft Burnham
erikbethke — August 31 2007, 05:07:38 UTC
Re-posting a private email to the blog to keep everything helpful here:you should base your EULA on restrictive covenants:http://en.wikipedia.org/wiki/Restrictive_covenantthe contract between you and the user is like you the home seller, selling the home to a home buyer. the buyer gets the property rights. but as part of the deal, the buyer commits himself to do or not do certain things. the terms of tos go in here - no naming your gopet osama or gaybait.the motivation for the property rights part is the self-interest of both the buyer and you. the motivation for the covenant part is community interest: the value of this community will be eroded if people do not bind themselves to this type of contract.basically, restrictive covenants are a way to use ordinary property contracts to handle community interest issues, like RMT, copyright, gambling, etc. -from TC
zhai — August 22 2007, 03:55:48 UTC
From the perspective of decades and centuries statements like "slavery should have been profoundly illegal" can become obvious, but at the time Africans were considered subhuman in the way that many Asian cultures even today consider other Asian cultures subhuman, "lesser" races, not really capable of "important" thought or action. We apply this toward children as well, though with more neurological basis -- children below a certain age are not deemed fit to determine what's best for them, so as adults it is seen as kind and responsible to make that determination for them and protect them from themselves.Users are treated in similar ways, generally. They are not deemed fit to treat each other properly and so there are enforced population controls and hard-lined rules where all rights can be taken away or never exist in the first place, for the users' protection. The ways in which people in previous ages assumed society would collapse if "lesser" humans were permitted the rights of "higher" humans might be correlated to the way some say that virtual worlds would collapse if individuals (including griefers) were granted inalienable rights.Kind of an interesting dichotomy. The question is, given an environment where users are protected from each other, would they voluntarily seek a space where they were self-governed instead? With reduced stakes (no matter what, generally, no one is going to die or even be rendered bankrupt via an online world), are the costs of self-determination and complex social government worth the reward?
erikbethke — August 22 2007, 07:33:00 UTC
Wow this is indeed an interesting analogy.For some reason the general understanding is that when you log in to an online service and click okay, I agree that your functional intelligence is just barely enough to qualify for that one act of clicking and nothing more after that.-Erik
anonymous — August 19 2007, 07:58:33 UTC
I think it is awesome that you're taking the time to educate yourself here. I come to virtual worlds from the political science perspective (which has everything to do with the books you're reading right now) rather than the engineering perspective and it is really nice to see an engineer taking what I studied as seriously as I take what engineers studied. It gets a little old listening to random software guys holding forth on rights, law, and so on without any education in the area whatsoever while those same guys would (rightly) jump all over me for similarly holding forth on, say, the merits of extreme programming.Good for you Erik. You have got to be one of a small handful of developers who takes these issues seriously enough to do more than just spew out uninformed speculation.--Matt Mihaly
erikbethke — August 22 2007, 07:31:38 UTC
Wow, thank you so much Matt, coming from you this is meaningful. I read your comments at TN regularly.The problem with all soft sciences is everyone is automatically an expert (such as war and peace making) vs. the hard sciences were there is an arcane set of vocab that is required before you can even begin discourse.Personally I think hard sciences are vastly easier to grasp and teach than the soft, and I would like to see kids get algebra done in elementary school, and calculus in middle school and free up high school for a better understanding of history, economics, and political science - for no matter what your end career is going to be you gotta understand money - and it is these 3 subjects that you need to understand money.
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Published: August 18, 2007 7:03 PM
Last updated: February 20, 2026 4:22 AM
Post ID: 1fd01982-7f50-4740-b280-8c9cc574dc64