Constitution 3.0: Freedom and Technological Change Review

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Constitution 3.0: Freedom and Technological Change ReviewThis edited volume brings together a team of authorities in Con Law that create thoughtful dilemmas most of us may encounter. Recommended to me by a University of Virginia adjunct Law Professor with 20yrs experience practicing before the 4th Circuit, I can say this volume is spot on in information and scholarly discourse. Packed with information, this is a book you'll want to highlight and underline for future reference. This is a 21st Century must read.
Everyone needs to be aware of the complete loss of privacy. Many fail to consider a horrendous (not horrific, because something can't be horrible and also terrific--they cancel each other out) crime and organic impairment as a cause--leaving the attacker without control or recourse. Functional Magnetic Resonance Imaging (fMRI) brain scans provide a complete investigation. Here neuro-law evidence will transform the legal system and negate notions of moral responsibility.
The 4th Amendment dilemma, historically covering physical searches, must also include virtual searches. However, the Supreme Court has yet to understand and appreciate this. While the law needs to regulate widespread collection of data, greater attention must be applied to use and disclosure with emphasis not only on how but what to regulate. Kerr mentions that future surveillance must include future use restrictions on what can be done with information collected. All of us are aware of the computer cop "13yo girl"--bald, beer gut, sagging tits, hairy legs that no woman would want to see in shorts--preying on and entrapping the low IQ, lonely loser, and one who takes your tax dollars for more jails, more punishment, while depriving you of good roads, safe bridges, and an educational system that attempts to educate. We, as a society, must demand a victim before prosecution and return entrapment to its original meaning. I recall recently in a Federal Ledger class in which I advised a fellow student that we're now operating under a notion that it isn't entrapment if you appeared to have intentions of committing the act. We must STOP prosecuting and jailing solely on the basis of THOUGHT crimes. In order to do this we must nullify those "businesses" that survive solely on fear, hate, and group hysteria. Here lies a fault of the book. The Editors should have included significant mention of entrapment. Not in the index. Not in the book.
Goldsmith reminds of no Constitutional restrictions on military activity in the US, excepting the 3rd Amendment, and has a valuable inclusion of the Posse Comitatus Act and how the National Security Agency is exempt from this due to Congress enacting many exceptions.
Rosen applies Justice Kennedy's "autonomy of self" preventing the state's "dominant presence" as also applicable to ubiquitous surveillance which otherwise would prevent citizen defense and expression of individual liberties. We saw this grave concern in Homeland Security's deployment of naked body scanners without an NPRM--something unheard in Federal government, and the later backlash and change.
Wu, on speech architecture, provides significant commentary on censorial pressures from others by those often lacking a censorial instinct. But those looking for any discussion of FCC's jurisdiction will be sorely disappointed, as Wu caves to the nuances of private discrimination as a central place in regulating communications. I don't agree with this and I think many of you won't agree either.
Physicians will enjoy Morse's chapter on Neuroscience. Morse cites a case involving neurophysiological frontal cortex activity associated with poor behavioral regulation. Severe abuse history combines with a genetic enzyme abnormality affecting specific neurotransmitter levels, producing marked antisocial behavior. How is just punishment conveyed to victims of neuronal circumstances wherein no one is actually responsible? While Morse attempts to make a case for preventive civil detention and involuntary treatment in cases of impaired rationality, his notion of "desert-disease jurisprudence" is lacking. We must reach a consensus on "dangerous proclivities" and individual responsibility that is not solely governed by emotion and hysteria. Then, who is to decide? One more argument against Capital Punishment and the blood thirsty who would impose this at any cost to actual innocence of having committed the crime. Morse's unique view of criminal law imposes a "folk psychology" of person and behavior, using mental states as fundamental to "full causal explanation." Morse cites the difficulty in defining "loss of control" as one reason it becomes difficult to conceptualize cases involving internal compulsive states, taking the reader to "disorders of desire" (drugs/sex). More on brain regions and neurotransmitters appeared in the NY Times "The Voices in My Head Say `Buy It!' Why Argue?"
Snead makes a convincing case for prefrontal cortex diminished activity (reasoning, self-restraint, long-term planning) and greater than normal limbic activity (more primitive fear/aggression) with neuroanatomical structural abnormalities consistent with psychopathic behavior. Snead (p136) presents a case offering convincing evidence with a prefrontal cortex concussive injury preventing the father from restraining impulses to molest his 5yo daughter, and another case of a teacher with an egg-sized prefrontal lobe tumor who had no criminal record and a stable marriage, who could not restrain himself from viewing child pornography, soliciting sex, and making sexual overtures to his stepdaughter. After tumor removal, these behaviors stopped. Snead's attack on the cognitive neuroscience project and its threat to enlarge the "disease" justification obfuscates the fact that there is no behavior that cannot be changed. Period. Those opting for extended detention including some so-called "licensed professionals(?)" don't want you to believe this. Where was their training in aversive conditioning? Probably stuck and forever lost in a cognitive-behavioral nether zone.
Also covered are electronic artificial intelligence, Cohen and Rowe calling Roe v. Wade "a dubious decision" but thoughtfully adding "in our judgment" (Avoid Chapter 11), and Robertson's preimplantation genetic diagnosis as opposing a notion of children as "gifts." Readers will find entertaining Boyle's take on genetic engineering-- taking the reader to the ethereal zone of sex dolls (½ human, ½ worm=sexy 20yo blonde with consciousness of a roundworm and no brainstem activity who only wriggles when you touch her) and more realistic debate on corporate personhood. Wittes' commentary on the natural occurrence of deadly pathogens, and misuse of technologies, biosecurity problems takes the reader to Wittes support of government leveraging/monitoring gene synthesis equipment (companies/scientists) although he admits unlicensed people who want to build bugs will do so. Lessig thoughtfully invokes that constitutional interpretation comes from what everyone knows is true as from what the framers wrote--a living, working, viable document (Are you listening, Justice Scalia?)
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