The Constitutional Basis of Monopoly Anti-Trust Legislation
RE: "If your point is that our Constitution forbids MSFT from monopolistic practices, you just plain wrong. Sherman is statutory law; the Constitution, on the other hand, requires an act of Congress plus ratification by the several States to amend it."
Then:
The Declaration of Independence presents itself as a popular consensus anchored on the self evident necessity of securing the blessings of liberty for the states and their people. Prudent activity based on the Declaration of Independence has been deemed to include the severing of the then existing political ties to Great Britain and, by presumption, the setting up of a new government. Under the "Promotion of the General Welfare" Clause of the Constitution, the Constitution both enables and mandates the enactment and enforcement of laws deemed appropriate by the people through their government.
And Now:
The Constitution is generally recognized as a body of general principles and not as a specific legal codex. Like so many other significant issues effecting our general welfare, monopoly is not specifically mentioned in the Constitution. However, the enactment, adjudication, and enforcement of the current body of Anti-Trust Laws and Regulations is clearly constitutionally mandated as a legitimate expression of the people's desire to provision their "general welfare" in order to "secure the blessings of liberty".
Hal
PS: Of course, the people can change specific laws at any time through their elected representatives. In the mean, time what law there is, is the law. I would suggest that regulators are just doing their duty as they see it under the Constitution and that constitutionally based arguments may grant Microsoft no relief in the courts under the current laws.
Also, in theory, the courts can strike against any seeming injustice even if there is no specific body of law relating to it by falling back on mandates based on general constitutional principles. Very often bodies of law are mere formalizations of the numerous independent legal precidents that preceeded them. I am sure there were numerous anti-trust rulings before the Sherman Anti-Trust Laws.
I think it is time to leave the discussion of general principles and begin to focus on the specific charges against Microsoft and on how appropriately Microsoft will handle them. This will best help determine how high Microsoft will fly. HR |
