Re: slightly off-topic: support open source for publically-funded research

[Darren Schreiber]

I haven't said anything on this topic yet, but I think I am probably 
one of the few lawyers on this listserve.  For an act of Congress or 
a federal agency to be unconstitutional, it has to do basically one 
of two things.

1.  Not be within the enumerated powers of Congress or the federal government.

2.  Violate some right listed in the Constitution or amendments.

Now, the necessary and proper clause (Article I, Section 8, Clause 
18) has been interpreted to Congress the authority to do most things 
it wants to regarding the appropriation of federal funding.  And, 
Article I, Section 8, Clause 1, gives the Congress the power to law 
and collect taxes to pay the debts and provide for the common defense 
and general welfare of the US.  So, we don't have a limitation of 
powers issue here.

And, I can't think of any particular right (remember that there has 
to be some right specified in the Constitution) that would be 
violated by such limitations on the use of funds.

Therefore, constitutionality is not an issue.

The notion of citizen's consent to taxation and government is 
important in a theoretical sense to US government, but we don't live 
in a direct democracy where we vote every governmental law, rule, and 
regulation up or down.  We have representatives who make laws and 
agencies to make policy etc.  We consent to the law by electing our 
representatives and remaining within the jurisdiction of the country.

This is obviously off-off topic, but I thought maybe it would end the 
debate on the constitutional issue.

> Well, I'm not going to claim to know anything about constitutional
> law; but, it seems to me that it could be considered unconstitutional
> to appropriate funds from the citizenry and then use those funds
> without that citizenry's consent.  For any *particular* grant
> managed by the NSF, say, to constrain the project to open source
> would be above board because the citizenry has consented to
> managing these projects on a case-by-case basis.  In fact, that's
> simply the way it works and has worked for a long time.
--


___________________________________________

                 Darren Schreiber
                  Attorney at Law
                 Graduate Student
             Political Science, UCLA
                address@hidden
        http://www.bol.ucla.edu/~dschreib


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