Oliver Wendell Holmes Jr. Quotes – The Quotations Page

Oliver Wendell Holmes Jr. Quotes – The Quotations Page: “Our test of truth is a reference to either a present or imagined future majority in favour of our view.

Oliver Wendell Holmes Jr.”

Controversial Succession Plan for Congress in Emergencies

In an article by JIM ABRAMS, Associated Press Writer, entitled “Congress Criticized Over Succession Plan” we have further evidence of planned usurpations of the U.S. Constitution – here again involving a proposed amendment to the U.S. Constitution contrary to all of the principles for which that wonderful document stands.

As Abrams reports, “The Continuity of Government Commission”, headed by former Senator Alan Simpson from Wyoming (here is a sample of Mr. Simpson’s “erudite” remarks) as well as Lloyd Cutler, former presidential adviser to various presidents, have backed approval of an amendment to the U.S. Constitution according to which the governors of the individual States could appoint members of Congress in an emergency situation.

This absurd idea has been opposed, even by Republicans.

Below are two men you can add to your list of the really “good guys“. [Note that I personally have no partisan preference, but on the pages of LawPundit, we will separate the “good guys” from the rest, regardless of their political party.]

As Abrams writes:

“House Judiciary Committee … Chairman Jim Sensenbrenner, R-Wis., and Rules Committee Chairman David Dreier, R-Calif., prefer quick elections of new members instead of allowing governors to appoint House replacements. Appointments would erode the House’s status as a fully elected body, they said.”

further, quotes Abrams:

“I am concerned that beneath its plain-brown wrapper lies the constitutional equivalent of a computer ‘virus’ or ‘worm,'” Dreier said at a recent hearing on the issue. Dreier and Sensenbrenner have proposed that elections be held within 21 days in the event that 100 or more members are killed.

And finally,

A constitutional amendment,” Sensenbrenner said at a hearing, “would accomplish what no terrorist could, namely striking a fatal blow to what has otherwise always been ‘the People’s house.'”

Hear, hear, Mr. Sensenbrenner and Mr. Dreier. You are apparently men who understand the superb and necessary legal structure underlying the United States government, which can not be torpedoed for the sake of ephemeral problems.

The Perfidious Senate Bill S 1558 IS

In my previous posting on Spam and Spam Laws, I already noted that the US Congress had adopted a path of encroachment on the powers of the other branches of government, one path of encroachment being the numerous fairly recent Constitutional Amendments passed regarding the Presidency and the other path of encroachment being the legislative assault on judicial review, i.e. the means by which the judiciary department of the U.S. government performs its “checks and balances” on the legislative department, as forseen by the logic of Madison’s Federalist Paper Number 51, as reproduced in part in my previous blog posting.

Let us take a look at the perfidious bill, S 1558 IS, introduced in the Senate by a man named Wayne Allard of Colorado as the so-called Religious Liberties Restoration Act. You can find this bill at the graciously named website, Stop Liberal Judges, which by its very name already shows that the powers of the judiciary are intended to be encroached and usurped by this bill.

Section 3(d) of that bill provides:

EXERCISE OF CONGRESSIONAL POWER TO EXCEPT- The subject matter of subsections (a), (b), and (c) are excepted from the jurisdiction of Federal courts inferior to the Supreme Court.

In other words, all of the provisions of this bill are to be excluded from judicial review by the Federal courts.

I could not imagine that any man trained in law and having even the remotest understanding of the structural system of American government, as explained by Madison in the Federalist Paper Number 51, could sponsor such a perfidious bill in the name of religion, so I looked at this man’s biography, finding indeed that he was not trained in the law, but rather in veterinary medicine.

Let me say this, as someone trained in the law, that I would not feel competent to be administering medicine to your pets at home or to your animals on your farm. That is not my expertise, but the realm of the vets. I wish vets such as Mr. Allard would take the same view with respect to the law and with respect to the fabulous structural legal system in America, as described by Madison, which has made the United States such a great country for more than 200 years.

The sadness of this story is that Mr. Allard is trying to do what he thinks is the “right” thing and in the process – if successful – is destroying the very foundations of that very same great country that he thinks he is trying to defend.

If these kinds of assaults on the separation of powers and the system of checks and balances are ever successful, then the United States will cease being the leader of democracy in the world, but will join the ranks of tyrants, with majorities exerting their ephemeral whims on the populace, just as a herder of animals does on the ranch. Animals are not subject to the rule of law, but humans, at least in the United States, still enjoy its protections.

When judicial review is eliminated, the tyranny of legislatures is not far behind and the rule of law will disappear.

I suggest Mr. Allard stop campaigning ceaselessly in Colorado (his own website boasts that he spends more time there than in Washington) but rather that he make himself familiar with the Federalist Papers, read them, and try to understand what Madison was talking about. Indeed, this suggestion goes out to all members of the US Congress, regardless of your political party. FIRST, understand your job. THEN, do your job.

Separation of Powers – Checks and Balances


Whatever the advantages of blogs may be, one of the disadvantages is that it gives many people the opportunity to express opinions on subjects which they have not studied in sufficient detail and about which they are thus resultantly less competent to pass any informed judgment than if their voices had come from the standpoint of considered and well-researched reason. Blog postings on the Presidency abound – but of what value are they?


I am in the process of reading The American President by the Kunhardt clan, ISBN 1-57322-149-X (it was also televized). It is better to FIRST understand the Presidency (something not apparent in many blog postings about US Presidents) and THEN to voice one’s opinion on the subject. [Please note in Amazon that if you enter ISBN numbers with the dashes included you will get ZERO results – you have to write the ISBN together without hyphens as 157322149X in the search box].

In a chapter entitled “The Balance of Power”, the Kunhardts discuss the Presidents James Madison, James K. Polk (greatly underrated President whose expansion of US territory during his administration “made” America territorially what it is today), William Howard Taft, and, surprisingly, perhaps, under this heading, William Jefferson Clinton.


In discussing the brilliant James Madison, the Kunhardts refer to the Federalist Papers, eighty-five essays which Madison coauthored with Alexander Hamilton and John Jay in the years 1787 and 1788 in order to convince New York State delegates to adopt the US Constitution.

In one of these papers, Federalist Paper Number 51, Madison writes as follows under the title “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments”: [this is our selection of text and it is our emphasis in block type – you MAY have to concentrate a bit to understand the text, it is out of another era]:


TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places….

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others….

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions….

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department [the President] and the weaker branch [Senate] of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? …

There are, moreover, two considerations particularly applicable to the federal system of America….

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [LawPundit note: Federal and State governments], and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself….”

We will in future postings address some modern issues in light of Madison’s statements in the above Federalist Paper.

Legality of Hyperlinks

Michael Froomkin writes:

Discourse.net: “My own personal view is that a hyperlink is and should be every bit as illegal as a footnote in an academic article.”

Correct, presuming that the hyperlinked page is intended as being public on the original website.

If people do not want access to be made to their pages by hyperlinks or otherwise, there are developing technologies to prohibit this.

One technology to prohibit deep-linking and scouring of databases is found at Networksolutions’ WhoIs.

If you have not tried it yet, go to WhoIs and enter a known domain name e.g. lawpundit.com. This will then take you to a page where you have to enter a randomly created string of letters and/or numbers to access the desired information page, which keeps the page from being scoured by robots or from being deep-linked by websites attempting to use the WhoIs database for their own website pages. I am not an expert on these types of protections, but it seems to be very effective.

It is too much to ask of users to read the “fine print” of every website he or she visits to find out what can ostensibly be linked to and what can not. That is simply not a practicable viable legal solution.

Senate Anti-Spam Bill passed – Can Spam Act (S. 877)

Via Tech Law Advisor, via Michael Wong, and via Zachary Rodgers, I was directed to Roy Mark at Internet News and his article of October 23, 2003 on “Senate Anti-Spam Bill Ups Ante for House Action”.

CAN SPAM ACT (S.877) – US Senate passes Anti-Spam Bill, Not Yet Law

As reported by Mark, the US Senate has finally approved “the first ever federal anti-spam legislation” on a 97-0 vote (the zero tells you that any Senator voting AGAINST an anti-spam proposal could probably have kissed his re-election chances goodbye). The CAN SPAM Act (S. 877) (CAN SPAM is an acronym for CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING) was co-sponsored by Senator Conrad Burns (Republican, Montana) and Senator Ron Wyden (Democrat, Oregon).

According to this bill, commercial bulk e-mailers violating the law would be subject to civil and criminal penalties. The bill defines spam as an “unsolicited commercial electronic mail message” which “is not a transactional or relationship message” and which “is sent to a recipient without the recipient’s prior affirmative or implied consent“.

Senator Charles Schumer (Democrat, New York) championed an amendment added to the bill which directs the FTC (Federal Trade Commission) to develop a federal “do not spam list” similar to the National Do Not Call Registry.

Senators Orrin Hatch (Republican, Utah) and Patrick Leahy (Democrat, Vermont) added criminal provisions to the bill ranging up to five years in prison for some of the most insidious common spamming practices.


Here is a press release found at Senator Conrad Burns’ website:

Press Release October 22nd, 2003


Legislation gives consumers more control over unwanted e-mail, promises stiff punishment for senders of unlawful, deceptive spam

Washington, DC – U.S. Senators Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.) today won unanimous Senate approval of the bipartisan CAN SPAM Act of 2003 (S. 877), aimed at helping American consumers deal with the growing problem of unsolicited e-mail or “spam.” Wyden and Burns have worked for more than three years on legislation to curb spam, which constitutes nearly half of all e-mail traffic today. The legislation passed by the Senate today includes a number of tough civil and criminal penalties against the senders of unlawful unsolicited e-mail, and addresses a number of other issues including the idea of a “do not spam” list and special warnings for pornographic messages.

“This is something we have been working on for some time now,” said Burns. “There has been an ongoing push from all sides on this issue, and the time has finally come. The overwhelming message from consumers and industry alike is that something needed to be done and I am happy to say that today we succeeded in that effort in the Senate.”

“Today, the Senate has sent the message that the government is going on the offensive against kingpin spammers,” said Wyden. “Americans are tired of just watching and fretting over in-boxes clogged with unwanted e-mail, and this legislation is an important step toward giving them more control.”

Worldwide, more than 13 billion spam e-mail messages are sent each day. Costs in the United States alone have been estimated at $10 billion per year, due to expenses for anti-spam equipment and manpower and lost productivity. The Burns-Wyden bill particularly targets deceptive messages sent by many large-volume spammers, who often hide their identities, use misleading subject lines, and refuse to honor opt-out requests from spam recipients.

Following is a description of the provisions of the bill approved by the Senate today.

Civil provisions of the bill include the following:

-a requirement that senders of marketing e-mail to include a return address so the consumer can tell them to stop;

-a requirement that unsolicited messages include clear notification that the message is an advertisement, and a valid physical postal address;.

-a prohibition on false and deceptive headers and subject lines – so that consumers can immediately identify the true source of the message, and so that Internet companies can identify the high-volume senders of spam;

-a provision to triple the monetary damages imposed on spammers who engage in particularly nefarious spamming techniques – such as using automatic software programs to “harvest” e-mail addresses from Internet websites, and using “dictionary attack” software to send messages to a succession of randomly generated e-mail addresses in search of real recipients; and

-strong, multi-pronged enforcement by the Federal Trade Commission, state Attorneys General, and Internet service providers (ISPs), with the potential for multi-million dollars judgments.

Additional criminal provisions, authored by Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) were added into the legislation by amendment on the Senate floor. The Hatch/Leahy criminal provisions create several tiers of penalties, ranging up to 5 years in prison, for several common spamming practices, including:

-hacking into somebody else’s computer to send bulk spam;

-using “open relays” to send bulk spam with an intent to deceive;

-falsifying header information in bulk spam; and

-registering for 5 or more email accounts using false registration information, and using these accounts to send bulk spam.

-sending bulk spam from somebody else’s Internet protocol addresses.

The Burns-Wyden legislation, with an amendment from Senator Chuck Schumer (D-N.Y.), also requires the Federal Trade Commission to report to Congress with a plan to implement a “do-not-spam” list, similar to the “do-not-call” list for which millions of Americans have already registered, and to share any potential drawbacks or difficulties with the implementation of such a list. The legislation also gives the FTC the authority to implement a do-not-spam list.

Other amendments to S. 877 include provisions to require the FTC to write rules for mandatory labeling of pornographic messages; a separate provision directs the FTC to consider mandatory labeling for unsolicited e-mail generally, as well as possible financial rewards for tech-savvy citizens who help trace hard-to-find spammers.

A number of anti-spam bills are currently moving through the House of Representatives. Wyden and Burns hope to work with their anti-spam counterparts in the House to send final legislation to the President’s desk this year.

[Let me say that I personally – and I am sure many e-mail users are like I am – find much commercial spam to be an odious, egregious violation of the personal sphere, daily confronting computer users with some of the basest elements that humanity can produce, and as far as I am concerned, the civil and criminal penalties for spammers of all ilk should be much higher than they are in this bill. These people daily and negatively and often substantially reduce the quality of my life as well as the lives of millions of others, and for that, the punishments should be as severe as possible. I personally find this bill to be much too soft.]


Bills must of course pass both houses of Congress to become law. Mark writes that the Senate anti-spam bill is not substantially different than competing bills “currently bottled up in the Energy and Commerce Committee“, chaired by Billy Tauzin (Republican, Louisiana).

It may thus be high time for the House of Representatives to get their spam-act together. But before we throw stones we must of course inquire as to what is the reason for the delay in the House Energy and Commerce Committee?

I read the following about that committee at NAW :

“while [it is] just the fifth in size in the House of Representatives with 57 Members, [it] has the broadest legislative jurisdiction of any committee in either the House or Senate, and is responsible for approximately half of all legislation introduced in the House.”

Presuming that work overload is one aspect of the delays in the House, we must ask what the reason for that kind of disproportionate job distribution in the House might be and why is that not changed, so that legislative tasks in the House are evenly distributed? Are some lawmakers more or lesser lawmakers than others? Hard to believe. Representatives in Congress should streamline their operations in order to serve as models fit for emulation rather than to serve as bad examples of organization. A corporate executive who so uneconomically split his manpower would be out on his ear in no time.

In any case, as Senator Wyden, sponsor of the Senate Bill stated: “Today, the Senate has sent the message that the government is going on the offensive against kingpin spammers,” said Wyden. “Americans are tired of just watching and fretting over in-boxes clogged with unwanted e-mail, and this legislation is an important step toward giving them more control.”

Better late than never.


Taking §102(a)(1) of the CAN SPAM ACT, I would like to show my editing suggestions to reduce the unnecessary verbiage increasingly found in Congressional legislation – are drafting and writing not taught in the law schools?

original text

(1) Electronic mail has become an extremely important and popular means of communication, relied on by millions of Americans on a daily basis for personal and commercial purposes. Its low cost and global reach make it extremely convenient and efficient, and offer unique opportunities for the development and growth of frictionless commerce.

text as edited by LawPundit retaining the above meaning and throwing out the verbiage

(1) Electronic mail (e-mail) has become an important daily means of personal and commercial communication for millions of Americans. Convenient and efficient due to its low cost and global reach, e-mail offers unique opportunities for the development and growth of streamlined commerce.

[Explanation of the editing above. Using both “popular” and “relied on by millions of Americans” is repetitive. Daily basis means “daily”. “Frictionless” commerce is not a “term of art” commonly used but rather appears to be a registered trademark – see Frictionless Commerce – talk about advertising for a commercial company through an anti-spam law. “Extremely” twice is like “very” overdone, see Volokh’s How to Write, where he suggests avoiding terms such as “very” as verbiage].

Google’s new Command – Define:

Via TVC Alert from Genie Tyburski at the Virtual Chase I find at Aaron Swartz’s Google Weblog that: “Google Glossary has gone live on the main Google site. Do a search for something like define elephant or define dna and you get back a definition with your search results. Search for define: dna or click ‘more results’ to see the rest of the definitions.”

I find that only the command “define with a colon”, i.e.


actually works – but I am in Germany, maybe it works otherwise elsewhere.

Entering that command in Google gives a fixed list of definitions of a given term on the web,

e.g. “define: boilerplate”, gives us the following list:

Standardized “fine-print” language in a contract or other agreement detailing terms and conditions.


A boilerplate document is created in word processing by assembling previously existing documents. Many routine business letters and contracts are assembled from boilerplate paragraphs.


Form language used in deeds, mortgages and other documents. Details can be added by individual parties.


Standard language in a contract.


Standard language that businesses routinely include in contracts. The other party to the agreement can sometimes negotiate to change or remove such provisions.


The language section of a bill or public act. With regard to an appropriation bill or act, typically provides for legislative intent or further legal clarification of the line-item appropriations. Boilerplate can also refer to the standardized or pro forma language that is used at the front of the bill or statute.


A term used to describe the standard terms and conditions on a purchase or other contract document.


Boilerplate is legal jargon for the form language used in deeds, mortgages and other documents. The boilerplate language is usually preprinted on the document itself; details are added by the individual parties.


Reports, form letters, and other prewritten documents that can be coordinated with mailing lists and other variable information to produce personalized hard-copy output.


Standard and essential contract terminology and clauses that are not subject to frequent change. Use of the term can be dangerous because it may lull contract parties into thinking they need not read the clauses, assuming no changes from previous contracts, or assuming the data are not significant.


Standard wording (for example, sentences or paragraphs in form letters or clauses in legal documents) that is held in storage. When needed, it can be used as is, with minor modification, or in combination with new material to produce tailor-made documents.


Standard copy that may be inserted in reports, foundation proposals, and other documents since it is unchanging and generally timeless. Also refers to legal forms which attorneys may use with standard situations. Topic areas:Fundraising and Financial Sustainability


from m-w.com: syndicated material supplied especially to weekly newspapers in matrix or plate form standardized text formulaic or hackneyed language


A colloquialism, used to identify standard terms and conditions incorporated in solicitations, contracts, or purchase orders.


A standard publishing contract, with no changes or addenda made by the writer or agent. The boilerplate should be considered a starting point only; usually changes will be made.


A standard text component of a document that requires few or no changes.


the standard terms and conditions on a purchase order, agreement or contract


Standard wording on mortgages and other documents.


sections of a proposal applicable to a variety of requests; e.g., organizational descriptions, professional resumes, etc.; often maintained by organizations submitting numerous proposals in order to reduce preparation time.


Text and/or graphics that appear in a report every time it is run. In some products this is called “constant” text or graphics.


Standard clauses and requirements incorporated into contracts (bid forms and purchase orders), which are derived from laws, or administrative procedures of state government.


Language from a previous document that a writer includes in a new document. Writers use boilerplate both to save time and energy and to use language that has already been approved by the organization’s legal staff.


Standard, non-controversial legal clauses, often required by regulatory agencies or state or federal law.


Refers to publishers’ standard contracts prior to any changes by an author or agent. Most publishers have a variety of boilerplate contracts to meet different needs. Boilerplates are always weighted in favor of the publisher and should be regarded by authors only as a starting point for hammering out agreeable terms.


standard formulations uniformly found in certain types of legal documents or news stories


thick plate iron used in the production of boilers


But be careful using this feature. If you plug in

define: lawyer


define: professor

you will see some unusual definitions.

How Google will get around these jokester’s definitions is another matter – depending on the algorithm they are using to try to create this online glossary.

This glossary feature is still quite limited.

Entering terms such as blawg and weblog gives zero results, although the term blog is defined.

The “define” feature in Google can be used to show very clearly that some aspects of “knowledge” and “communication” are relative to the content limitations on word-based expression.

We communicate by means of words, but these words often have no universal meaning and are “defined” in the brain of the reciever differently than they are defined in the brain of the sender, and the variance in definition is quickly seen when we look at the myriad definitions for commonly used terms.


define: law – (a seamless web – one of the first assignments that I give to law students in my classes is to write an essay on “what is law?”, after all, it is their chosen field of study, and the responses are as varied as the personalities that write them)

define: democracy – (wide diversity of opinion)

define: government – (make sure you read this to the end, it contains some beauties)

define: politics – (this has some mean ones in it)

define: freedom – (there are some creative ones here)

define: norm – (not easy to define, but something the law deals with all the time)

define: opinion – (the law-related definitions tend to be inexact)

define: precedent – (make sure to read the one from the Devil’s Dictionary)

define: purpose – (the best ones are at the end)

define: writing – (very weak list, but shows that writing is an artefact)

define: history – (some choice selections down the list)

define: religion – (a panoply of musings – note that the Oxford dictionary definition at the bottom of the list shows why we still need and use standard dictionaries – compare those definitions to what you otherwise read on that page)

define: God – (definitions found here are of course relevant to disputes about such things as the words “under God” in the Pledge of Allegiance – just what does the phrase mean?)

define: thought – (very few definitions, a rare commodity?) define: thinking fares no better

define: man – (oh dear, Google is lost here – the algorithm needs work)

define: woman – (an absolutely disastrous collection – if you did not already know what a woman was, would these definitions help you?)

As always, caveat emptor (see define: caveat emptor), which applies not only to physical goods we “buy” but also to what we “buy” as a matter of thought and ideas.

Google’s new command define: will never replace the standard dictionaries – unless the standard dictionaries are themselves used as the principal online sources, but this new command does provide some interesting insights into what people are thinking and writing, and it is quite good fun.