Comment by pasbesoin | Hacker News Reader

Comment by pasbesoin | Hacker News Reader

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We are going to have to look hard at contract law versus the Constitution and its amendments.

All sort of contractual gags that keep people from commenting on bad and sometimes malicious behavior. Because it's the only way to get the job they're trained for, etc.

Companies insisting on the contractual right -- in small and seldom-read print buried within a sea of other print, for an "everyday" purchase -- to essentially violate the 4th Amendment (I'm thinking; maybe I've got that wrong) against unreasonable search and seizure. I guess that right was targeted against the government, but it seems it should apply to these government-size corporations and multi-nationals, as well. Selling us what has become an essential service; try living most people's lives in the U.S. without a cell phone.

And hey, we know governments are making use of those data, as well. A typical government ploy; purchase data from a private, third party that the government is not allowed to directly collect, itself. Sorry, that "scrubbing" indirection shouldn't disqualify it from constitutional protections.

Divide and conquer. Whereas solidarity actually requires some privacy and wiggle room, to function effectively and autonomously in the real world.

You already hit this point but: the Constitution, and especially the Bill of Rights, is about defining a legal structure of government. We can all agree that privacy is a "universal right," but neither history nor legal precedent supports that interpretation unequivocally (even with regard to the government specifically; you can read some really interesting Constitutional history about the "right to privacy" and how it arose as a concept in the late 1800s; Brandeis's "The Right to Privacy" is a fascinating historical document"). The only true remedy to this problem is laws enacted by Congress. We need to stop talking about this in a wishy-washy idealistic way and start talking about realistic, precise, and legal solutions, which means enacting specific laws.

This is an outsider's perspective (I'm Australian) but it seems as though more and more is being done through Executive Orders - the Korean War, the EPA, Obamacare - instead of through proper channels.

As far as I can tell, this is because Constitutional amendments are hard to enact (in the case of the EPA and Obamacare) and for reasons I don't understand, Congress doesn't seem to want to declare war any more.

Is that a fair assessment, or am I getting only part of the picture?

You've got the right idea behind your assessment, but the pieces in play are a little off.

Federal laws (Obamacare/ACA) and federal entities (EPA) are created by Congress.

The executive branch (President), can issue executive orders, but they are limited to authority granted by Congress and the constitution.

The judicial branch is there to verify that the other two branches are staying within their constitutional authority.

Constitutional Amendments are difficult to enact, but that is intentional. Amendments limit government at all levels. Congress can't make any law, and the executive branch can't issue any order that conflicts with the constitution. The only thing you can do is amend the constitution again.

The problem is that Congress has become a gridlocked mess while also offloading a lot of it's authority to government agencies acting on it's behalf under the executive branch. Effectively increasing the scope and power of the presidency and by extension the reach of executive orders. This has also pushed the judicial branch into a much more active role than it was designed for.

Edit: It's also one of the contributing factors in the heated elections in the USA. As the power of the presidency grows, people become more invested in seeing their person in charge.

Sure, but those aren't the only two options. You can just pass normal laws. They don't have to be amendments. That's also difficult, though, due to the extreme partisanship in our political environment, but it's theoretically the fitting solution.

My understanding was that at least some of those - Obamacare and the EPA - required either an Executive Order or a Constitutional amendment, because the powers required were not granted to the Federal Government by the Constitution.

Agreed that declarations of war can just be declarations of war, no amendments required. It strikes me as odd that Congresscritters would be okay invading a country, but not okay with declaring war against them.

US Agencies don't need a Constitutional Amendment to come into existence - the usual method is simply a law that Congress passes that the President then signs. E.g. Dept of Energy, Dept of Education, Dept of Homeland Security, Dept of Housing and Urban Development, etc. going way back to the Dept of Foreign Affairs (precursor to Dept of State).

Obamacare (Patient Protection and Affordable Care Act) was also created by Congress - bill passed in both houses, signed by the President, upheld by the Supreme Court. That's basically a textbook example of how the system is supposed to work.

I'm not sure why the EPA (and others, like FEMA) were created by Executive Order instead.

As far as why Congress hasn't declared war since WW2, they've basically rolled up their say into the War Powers Act and the War Powers Resolution which provides for them being informed and issuing continuing approvals. They can then support the President (as Commander in Chief) but not officially declare war.

My understanding was that the IRS was directed to enact Obamacare by Executive Order, because they (the Federal Government) have no Constitutional mandate in that area. Same with the EPA.

The USA voted in favor of the adoption of the Universal Declaration of human rights. It contains an item about privacy being an essential human right.

That's already been ruled out by the SCOTUS. "Eleanor Roosevelt, Chairman of the United Nations Commission on Human Rights when the Declaration was drafted, spoke for the United States and stated that the Declaration "was not a treaty or international agreement and did not impose legal obligations; it was rather a statement of principles."

There is however the International Covenant on Civil and Political Rights, which is an international treaty. However, in practice, the ICCPR functions much like the UDHR - a statement of principles rather than a treaty which provides for proper enforcement. The US apparently specifically indicated when it ratified the ICCPR that it didn't consider the treaty "self-executing" as a matter of US domestic law and thus you can't enforce it directly in the US courts.

> I guess that right was targeted against the government, but it seems it should apply to these government-size corporations and multi-nationals, as well.

I could see a corporation tracking people for good. E.g. A travel agency that detects where it's clients are in route until they get to their final destination, and automatically reroutes for flight delays, or traffic jams. That would be something I might pay for.

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