Constitutional Law

I won’t have time in the immediate future to write an entry for day two; I am smack in the middle of the rush of my other classes. Perhaps surprisingly, the subjects discussed in the first week have a bearing on my constitutional law class.

We are studying the federal-state division of power, namely Congress’ ability to legislate via the commerce clause and the extent of that power. The Courts’ interpretation of the commerce clause’s reach has morphed over the years. It suffices to say for the purposes of the Moot Court case we’ll be playing with tomorrow that intrastate activity must have a substantial impact on interstate commerce to be within Congress’ jurisdiction. Certain non-economic activity can be within it’s jurisdiction, as can activity that only has an effect in the aggregate if that activity is economic.

The moot case (Sullivan) regards the possession of child pornography downloaded via the internet from other state’s or countries. The fact that the statute in question is constitutional only insofar as it affect the market directly bears on this week’s readings. The precedents on point regard the cultivation of marijuana for private use and the growing of wheat for home use over the federal-mandated quota.

Can porn be exempt by it’s existence as an information good? It is, when downloaded, mere data. In many cases, it’s production and distribution can arguably be motivated by nonmarket incentives, just as the other information goods discussed (open source software, etc) as discussed in Benkler’s book.

I would argue that it is more of a market good than the other examples used, in that most porn operates from direct sale (not the case here) or from the revenue generated by advertisements on high-traffic sites. In that case, although the activity would fall outside the scope of ‘trade’ ‘production’ and ‘purchase’, it would nonetheless be an integral part of commerce. Without this conclusion, much of the information goods that generate profit on his revenue model, which is a considerable amount, would arguably be outside the scope of Congress’ regulation. I don’t think that is a sustainable position.

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