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Comment by Verdex_3 | Hacker News Reader

This is something I see people and especially technology people struggle with a lot. After you strip away all the flowery language, the legal system is just a way we keep people from trying to bloodily solve their own problems with violence.

With this in mind, a final arbitrator makes a lot of sense. The point isn't to find out how the universe works, make a product that is economical viable and functioning, or determine absolute truth. The point is to keep people from killing each other in the fairest way possible.

It also doesn't have to be consistent. That's why we have laws AND judges. Sometimes the law is wrong because of the context of the specific case. In the US we throw a lot of layers at the problem to try to avoid human tyranny, but at the end of the day human tyranny is preferable to the tyranny of an ambiguously written law.

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I wonder if you'd feel the same if you got pulled over and had a few thousand in cash taken by police under the assumption that it was involved in a crime without any recourse. I suspect you'd prefer the literal interpretation of the constitution in that case.

It's funny how quickly you turn from a strict Constitutionalist to an activist judge based on your political views.

For instance, most left-leaning people probably think that in the civilian forfeiture rule, the judges should take a strict constructional interpretation of the constitution and forbid it.

However, when it comes to striking down immigration bans based on an economic argument[1], all of a sudden you want an activist judge.

I'm not saying I care either way, but I care about consistency. I think we are based on a common law system, and once an economic argument is successfully made it can be make at any time. If we're ok with that, we should be ok with civil forfeiture.

[1] The state says the ban would harm its tourism industry and the ability to recruit foreign students and workers.

The point being made is that the choice isn't between 'strict constitutionalism' and loosey-goosey-legalism, it is between loosey-goosey-legalism and feudal warlordism. I realize a disturbing number of techies are actually attracted to that (even if they think it will turn out differently), but I think most of the US populace thankfully isn't.

The theory is that there's a social analogue of Gödel's theorem, the humans are incapable of defining a formal set of rules for governing themselves that provides non-absurd outcomes in all cases. I believe this, but of course we don't have solvers for human reasoning (otherwise we could test the theory).

So sure, I absolutely agree with you that civil forfeiture is just a new name for highway robbery by the King's men. But for literalist constitutionalism to be viable, it has to handle hard cases as well as simple ones in zero-and negative-sum games, and the US Constitution (any document) leaves huge areas of potential conflict undefined. So your choice reduces to either it won't work with real humans, or you have to interpret it. To interpret it means designating someone (or some people) as official interpreters. And at some point, you find yourself back where we started, arguing about the interpretation of justices who are right because they are final.

Law is generally clearly defined for common situations. But you can't anticipate all possible contingencies so courts also have to make findings of fact, frequently on limited or incomplete information.

I'm trying to be descriptive not prescriptive. It's not really about whether or not I'm happy with any given result.

Let's say that suddenly there's a law that makes it illegal for the police to take anything out of a car AND we also eliminate all human judges. This completely stops civil forfeiture. Everyone is happy.

One day someone steals a priceless wax sculpture that represents invaluable cultural history for an area. This person throws the sculpture into a car and then drives off. After a short car chase the police disable the getaway car. The day is saved! Wait not yet. It happens to be a very hot day.

There's two things that can happen. The first is that the police can leave the wax sculpture in the car and because it's so hot it melts. The locals get mad and riot because the police willfully let their cultural history turn into a puddle. The second is that a police officer takes the wax sculpture out of the car, but then that officer is arrested for violating the law mentioned above. Then the locals get mad and riot because the government arrested the hero who saved their cultural history.

A lot of governance is a balancing act to prevent anarchy from taking over. If a human is in charge someplace then they can overrule a law that either doesn't make sense or is otherwise problematic. This can lead to tyranny, but hopefully the government itself is setup to prevent this as much as possible.

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