News Item: Unconscionable Is Unconstitutional
(Category: OP-ED)
Posted by Toddy Littman
Saturday 17 December 2011 - 21:16:17

Finally the alleged healthcare �law� is subject to review by the Supreme Court, which we all knew was going to happen, and mostly because of the process by which it was supposedly passed, that Obama said �doesn't matter,� http://changingwind.org/rename/news.php?item.121.12.

Yet I find it very peculiar that a particular legal precedent, antecedent to any other in distinguishing between tyranny and freedom has not been used: The principle of what is conscionable.

Say, for example, that I was selling a car, and you came to buy it, and I presented a contract to you to sign in making the purchase. Would you sign the contract without reading it? Most people would not, there is a need for them to have a conscious knowledge of what is stated in it, and to show, upon their signing, that the contract has the element of agreement, which also shows they comprehend a benefit from it that they see mutual to whatever they are exchanging, in this case, money for a car.

If, in review of the contract, you found a clause that said that you will pay so much a month for the car, but that you only own a license from the current owner, and that this owner could withhold the car from your use at any time, this would be a contract you wouldn't sign. You'd probably claim this person was carrying out a scam and would try to get them arrested for the public harm they are doing, knowing full well this is a contract allowing theft, and is therefore illegal.

Online software is this very scenario, and, they've used this unconscionable construction of the contract to claim protection of their Intellectual Property.

A Quick History

The difference between the car and the software is the difference in what is tangible and intangible, but more importantly, the legal meaning of �fungible� is in play.

Generally, fungible means replaceable by another article identical to the one you had. A car that is filled with design flaws can be replaced by a second car that is identical in all appearances, but with the flaws repaired in order to �make the customer whole� in relation to the property, their money, that they paid for the first flawed car. From a business perspective this is due to the car being protected by patent law, which imposes an obligation by patent holder responsibility for their invention, the company must assure that the invention works as intended. The reason is that if the invention shows it is not working as intended on a broad scale, those with patents pending of the same (or similar) invention, competitors may be able to challenge the patent holder's right, claiming abandonment or challenge the government who granted the patent as a 3rd party, and may have a 3rd party liability.

Software, however, has left this whole regime of protection, instead claiming �intellectual property,� a legal fiction entirely resting on a group of contracts amongst the developers and the software company, that extend to the �press enter to accept� �End User License Agreement,� that has ended up creating a regime of licensing allowing these companies to enforce unconscionable contracts.

Basically they make the contract a necessity to accept, while the contract sets forth the conditions of your use, that the user is only getting a license, that it can be withdrawn upon violating any of the conditions, and, if a monthly subscription, then payment is required per month for the access, though it can be withdrawn if you violate any one of the other conditions.

There is no guarantee of anything to be provided by the company itself in the contract, yet, if you don't hit that accept button you can't have access to or use of the software.

This is leveraging your interest against your rights, and further exacerbates the unconscionable actions of the software company in even having a contract like this, particularly for Americans with �unalienable Rights,� meaning, they cannot be given away, cannot be sold or bartered, cannot be stripped from you.

The Point Of Contention In Government

American government has taken on this same sort of crime with the Affordable Care Act by their lack of reading the bill, in that their vote for a bill they didn't read is your representative signing your name to the bottom of a contract they didn't read. This is how the Executive Branch, who is to enforce the law, is to view whatever gets passed through both Houses, though, the Executive is supposed to carry out a review of their own before signing the bill. Without such review the entire bill was ratified and put through as an unconscionable act of those claiming to be our representatives, to which we're erroneously held accountable to compliance on the basis of our representative House, Senate, and President's unconscionable endorsement.

Article VI of Our Written Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.� -- Emphasis mine, https://www.archives.gov/founding-docs/constitution-transcript.

Hamilton explains this expression in Federalist 33:

It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.� -- Caps Emphasis per original transcription, https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-33

By what authority can our government �pass� a bill through to become a law without reading it? NONE.

I post Art I, Sec 7 here to show a constitutional test of what is conscionable is present, outlining the process to assure a review of the authority of government's actions by House, Senate, and President, was intentionally put to parchment before the Enumerated Powers Clause:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.�

Our written Constitution abrogated by Pelosi, Hoyer, Reid, and Obama when the democrats had a super majority, and now they are going to go before the Supreme court with a law their own justice department admits was passed wrongly by their citation of it being a tax under the Commerce Clause, when the ACA bill never received Constitutional review as a tax, and was passed in reconciliation, as an expense due to Scott Brown's election.

This is government by lack of any interest in the cohesive bond of Freedom, ignoring wholesale how Our Written Constitution is We The Peoples' guideline for a government that meets the Declaration of Independence standard of legitimacy, �by the consent of the governed�; We who used our unalienable rights to institute a government with revocable rights; We who retain our Sovereign Power no matter what government claims; We whose citizenship is Sovereign, made certain and specific charge upon government, and, as we're the Posterity of Our government's Founders, We remain the Sovereign Power that Founded this government, for We founded this Nation by the Declaration of Independence, as it is a People who define a nation.

I Pray we comprehend these most important principles to our Freedom, necessary in our Sovereign management of Our servant government.

Thank you for reading,

Toddy Littman




This news item is from ChangingWind.Org
( http://changingwind.org/rename/news.php?extend.196 )