Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal
politico.com
politico.com
Then you also have top representatives from these agencies lying outright in public hearings with hardly a consequence. There ought to be criminal proceedings and punishments for this. A resignation here and there isn’t enough (one way they’d handle that is by joining the privacy sector and getting back into the game by proxy).
This is by design, a design which was cemented in place on November 22, 1963. If real accountability ever comes to the intelligence agencies, it won't come from the executive or legislative branches over which they exert a lethal veto.
I have heard many different equally baseless conspiracy conspiracy theories about this by now, and they all have two things in common: They each conflict with the other theories and their adherents all sound utterly convinced they are right. Which tells you something about people and their theories.
Indeed it would be, and that's not what I was doing in my post. I brought up the U-2/Eisenhower history only to establish that the CIA was already taking steps to make itself the final arbiter on policy, above and independent from the POTUS. Especially when it came to any potential rapprochement in the Cold War, toward which JFK was also making serious overtures just before he was killed.
You can go looking through the vast numbers of theories around JFK's killing and find absurd ones I'm sure, but lumping them all together into one big undifferentiated mass hardly makes for a good argument. In favor of the existence of a conspiracy, there are numerous witnesses and extensive documented and circumstantial evidence, and the motive for such a conspiracy is clear. It's one thing if you don't find that evidence persuasive but it's ridiculous to call it "baseless."
Part of a solution may be to introduce a "principle of proportionality" like [1] (if one does not already exist), and to aggressively remove the bugs in the US judicial system that prevent ordinary courts from examining the spies, the military and the executive. Like the state secrets privilege [2]. Then the system can prevent itself from backsliding during crises.
Laws are no good if courts take 10 years or more to figure out whether they have jurisdiction over, or are able to subpoena evidence relating to, crass, publicly known, obviously illegal, civil rights violations. If courts take too long, standards shift, are forgotten, then abolished. The normative power of the facts.
Jewel vs NSA has taken 10 years and has gotten nowhere.
[1] https://en.wikipedia.org/wiki/Proportionality_(law)#European...
The purpose of such rules in practice is to help the American public to sleep at night despite having tacitly authorised a nightmare. You know the scene in Casablance, even if you've never watched the movie - it has permeated our culture Captain Renault claims to be shocked to discover that the club is being used for gambling, undercut by a croupier giving him his winnings.
If you don't want spooks to do what spooks do, don't pass a law saying it mustn't happen, don't vote for a government that promises they'll exercise oversight over the spooks to prevent it. Just get rid of the spooks. Congress could, if the American people wanted - which they do not - abolish these agencies entirely. They'd just cease to exist and while I'm sure some small scale abuses would continue you just can't run programmes to snoop these huge volumes on pocket change, and companies would be less likely to co-operate with informal requests than with the Department of Justice.
But as much as they enjoy bluster, Americans are afraid, and so the spooks will certainly continue to be authorised and "outrages" will happen when once in a while it is revealed that the spooks are doing what spooks do but nothing actually changes. Eventually it'll get to be so routine the The Onion has a pre-built news article for it like for the mass shootings.
Now, if you believe that these agencies have amassed and hoarded enough of the money they've already been given that they now have an endowment that can perpetually fund their activities, then yes, that would mean you really can't stop them. But I'd find it hard to believe that's the case; what they do is not cheap, and I'd be surprised if there's all that much left over after they spend their yearly budget on regular operations.
If Congress voted to completely defund these agencies, they'd go away. Not immediately, and I'm sure there will still be some in power who create limited shadow agencies that run on much, much smaller budgets, but they can't operate at the scale they do now without continued funding.
Really, though, I'd expect them to maintain Congress' support through non-lethal means. Bribery, blackmail, stuff like that. A Congressperson in your pocket is much more useful than a suspiciously-dead body.
But still, if US citizens as a whole really wanted them gone, they'd just continue voting in people who will take a hard line against funding them.
I don't expect something like this to come to pass, mind you, but it's possible.
What do you think In-Q-Tel[1] is for? It's about ensuring that the TLAs will exist in perpetuity regardless of Congress.
And the hope, with all this surrounding us, that somebody must made exclusive findings ? P-:
Reminds me of Lisa simpsons rock which protects against tigers.
> Reminds me of Lisa simpsons rock which protects against tigers.
Reminds me of Ernie's banana in the ear:
Are Americans really afraid? Or is it that Americans feel comfort in having the meanest dog on the block, even if that dog sometimes nips its master?
More tangentially, as I usually fly outside the US, it's fair to say that this is far from just an American reality. For example, the Dublin Airport even explicitly mentions that hold baggage may also be searched by hand on their website: > "Both your carry-on luggage and check-in baggage will be checked by means of detection equipment and may also be subject to a hand search." [1]
I have a hard time believing that airports with any restrictions on what check-in/hold baggage may contain (virtually all of them, if not all) don't have any provisions for searching bags, although maybe I'm wrong here.
Although, what country doesn’t have the ability to dig through your luggage? In my personal experience, Europe is the only place that I’ve seen armed officers dig through 100% of the bags on a flight while the entire airport watched.
[1] without vetting the evidence (or highlighting the lack thereof) &
[2] without the context of how often these turn out to be true/false
they're part of the FUD Generation Machine
Fox News' use of the "FOX NEWS ALERT" interruptions and the fear mongering were quickly replicated by all the other major cable networks in an attempt to compete. All of the networks were complicit in selling us into war with lies,
I think it's really more silly and uninformed to single out Fox News, given the current media ecology and political climate. Today's CNN and MSNBC will do things that are simply treacherous, making Fox News look tame by comparison. We're in a new era now.
Fox News uses fear - and the degree at which their resident pundits use falsehoods and misrepresent the truth - and use fear as a partisan tool to push one single political party - is far beyond CNN and MSNBC.
Unfortunately that's not now power works, not even in a relatively free society such as the US. How often does the public actually get their way when it comes to policy? Once elected, representatives will almost certainly follow the same agenda - work hard to maintain power and privilege for the existing ruling class. Secret services with discretionary power are an invaluable tool in this endeavor.
Where I disagree is that these powers are unchecked and tolerated when used on a country's own citizens. The mandate of both of these organizations is crystal fucking clear - do bad shit abroad but not to your own citizens. There has to be oversight of this, that oversight has to be built into the system, and there have to be consequences. Knowingly collect data on US citizens: go to jail. Fail to regularly audit whether or not you are inadvertently collecting data on US citizens: go to jail. Torture, steal, trespass, hack? Jail. Know that someone has done this and look the other way? Jail. But what about domestic terrorism, or important exceptions? No problem! Get a warrant.
This whole business of "we don't want spies to be afraid to their job" is bullshit... As a business owner it would be much easier to not pay my taxes, defraud investors, avoid safety regulations, and have my competition murdered. But I don't do it (and I'm not preoccupied with dread about it). Either our shared values (e.g. the constitution) are important or they are not.
> But what about domestic terrorism, or important exceptions? No problem! Get a warrant.
I've heard about accounts of police investigations being aided with access to the mass surveillance data (through the FBI, I believe). It never goes to a FISA court, and the police use the information to develop a pretext for a warrant.
So even with a warrant, the power may still be unchecked. I believe it reasonable to conclude that conducting mass surveillance can't reliably done without abridging constitutional rights. I guess that leads us back to the unresolved conversation from early in this century about the trade-offs between liberty, privacy, and security.
Well, yeah, that's the entire point of the Five Eyes: each member can spy on the others and share the results with the rest of them, but if one member were to spy on its own people, perish the thought! That would be unconstitutional!
And, in the case of bulk collection, it's quite obviously made them worse at doing what they're supposed to be doing.
If that were true, I think Trump would already be gone.
Remember that Snowden always said he was ready to come back to the U.S and be trialled, as long as the trial wouldn't be a secret trial. Those who created the laws for those secret trial where not the CIA or the NSA, it was politician.
The same way they made it so that it is forbidden to talk about the programs of certain agencies, even for law maker, meaning they approve programs without debate, with only a few senator knowing what the program is even about.
They created those laws, not the NSA, not the CIA, they could choose as easily to remove them. But it is too useful for them. The NSA can create a massive surveillance network that serves them without having to ever disclose it to the public.
I am surprised that they really have zero cases where mass surveillance helped. I would have thought they would make some up at least, but that got probably too hot.
Of course there is a massive amount of secret cases where it did help, but they just cannot tell you about...
It is a bad excuse that can be used to justify anything. Instead the case for secrecy needs justification.
The CIA has deep ties to the American upper classes. And probably serves their interests over the states. Or their own interests. Aldrich Ames was living well beyond is means for years. A good supposition is people at his level routinely trade intel to 'friendly' government an corporate interests.
Then imagine a single entity that has every domestic text, phone call, and email ever sent, searchable and indexed, on any politician, judge, or candidate. It's far, far, more power than merely spying on foreign powers.
That’s hardly unique to the US. Other nations’ intelligence agencies tend to attract the aristocracy, e.g. all the Oxbridge alum at MI6/GCHQ.
I read a book recently about a young (19!) year old tank commander in WW2 and he was told by his CO when arriving in Normandy that his life expectancy was 10 days.
https://www.amazon.co.uk/Tank-Action-Armoured-Commanders-194...
There is a lot of evidence that the CIA is doing whatever it can to ensure that the %1 of American society get their way with the world, however. That's not the same as 'serving country and government', by any stretch of the imagination.
There is in fact a lot of evidence that they serve the country.
This is true, but it's not the entire truth either. Most congressmen don't have access to the really sensitive intelligence that comes from these surveillance operations, so it can't be that useful to many of them.
A legislator's primary goal is to get reelected, and working to remove powerful operations like this deeply threaten a legislator's political viability during elections. Remember, there's an incredible amount of money changing hands in the military-industrial complex, and money plays a huge role in winning elections.
This, to me, is the heart of the issue. American politics are fundamentally corrupted by campaign financing
> A legislator's primary goal is to get reelected
is the more pressing problem to issue first. Is their "primary goal" not to legislate first? Pandering to the court of public opinion in order to secure re-election seems like it would also cause all sorts of conflicting incentives.
I don’t think elections themselves, or manipulating what people care about, is the “simplest way” to do anything. It will make a giant mess, but there are simpler ways to do that too.
I don’t know the simplest way, but my guess is that it includes breaking down the current few large non-self-sufficient communities with poorly-defined value systems and weak social fabric into many small self-sufficient communities with well-defined value systems and strong social fabric, each of which will have less internal turmoil and therefore be better-equipped to be a healthy member of the ecosystem.
Having them care about getting reelected is one thing, having them care primarily about funding their campaign (because, while the deepest pockets may not always win, that is usually the way to bet) is quite another.
British politics is not; the scale of our financial political scandals would make a DC lobbyist giggle at the quaintness of it. This is also true of the other Five Eyes, and yet all of them are trying to be just as aggressive as each other, there’s just a difference in scale of the parent country.
I’m not arguing for or against anything here, just noting that intelligence agencies in similar countries which aren’t beset by campaign finance woes are doing exactly the same thing.
> Schumer: “Let me tell you. You take on the intelligence community. They have six ways from Sunday at getting back at ya.”
Pretty easy fix is to make it illegal for them to not have the info. Then again I would prefer laws entirely removing the idea of sensitive information from the government. It is like a gun. A useful tool, very important for defending yourself, but those who have abused it in the past lose the right to it no matter how useful it is. The government has abused secret information in the past and as such should no longer be alloweed to have it. I rather we didn't have spies than to have the same laws protecting spies also cover up and enable child sexual abuse.
The chain of accountability for their actions does not end at the head of the agency. It extends into both the White House as well as Congress. As indeed "resignations here and there" are pointless, the public perception needs to shift to a point where elected officials are actually held to what they do (as opposed to, as is frequently happening, what they say.)
[1] https://en.wikipedia.org/wiki/Patriot_Act https://en.wikipedia.org/wiki/Patriot_Act,_Title_II
For one thing, the decision would have to be upheld at the Supreme Court -- although Gorsuch has signaled some willingness to put firm limits on this kind of data collection, which might tilt things in favor of upholding the lower court's ruling.
At the time of the offenses, the perps knew they were violating the law. If the law authorizing the action is found unconstitutional, then that retroactive permission has been withdrawn. There is no question of "double jeopardy", because they never faced trial.
[1] https://www.nbcnews.com/politics/congress/5-people-who-lied-...
"In July 1987, North was summoned to testify before televised hearings of a joint congressional committee that was formed to investigate the Iran–Contra scandal. During the hearings, North admitted that he had misled Congress..."
One of the sources explains that when congress investigated the Iran-Contra scandal, it granted Oliver North immunity for what he would say. From one of the Wikipedia sources:
"The most serious obstacle to North's prosecution was the immunity grant extended him by the Select Committees that in 1987 investigated the Iran/contra matter. North's nationally televised testimony under that grant of use immunity, which guaranteed that nothing he told Congress could be used against him in a criminal proceeding, greatly complicated Independent Counsel's investigation and raised serious questions as to whether North could ever be tried."
The witness cannot plead the fifth but they also cannot be prosecuted for anything they say.
And yes 2/3 of a committee is a small number of people.
It’s grifts all the way down!
If what you do actually matters, then meh, whatever, it's all good.
1: https://www.reuters.com/article/us-baseball-clemens/clemens-...
He testified to congress that this program helped foil 54 terror plots. Weeks later, he conceded that it was helpful in "only one or two".
We later found out there was basically just one, and it wasn't a terror plot; it was a Somali-born taxi driver living in San Diego who attempted to send $8,500 to a Somali terror group.
But the damage was done. The headlines blared from his initial testimony about the NSA using this program to thwart 50+ terror plots, but there was a fraction of that coverage correcting it.
Clapper's perjury may be more blatant, but Gen. Alexander's is pretty galling too. They both should've been charged.
https://en.wikipedia.org/wiki/2005_CIA_interrogation_videota...
Let’s not forget that Obama re-signed the Patriot Act even after campaigning in 2008 to end it.
This kind of behavior is a problem that spans generations of government positions. It’s about time something is done about it.
* 109 generals oppose her nomination in a letter: https://www.humanrightsfirst.org/sites/default/files/RMLSena...
* yes, there were some democrats who voted in her favour, but there were republicans too who voted against her. Overall though, the overwhelming majority democrats did vote against her. Far from "unanimous support" like you claim.
https://www.senate.gov/legislative/LIS/roll_call_lists/roll_...
There was at least some level of accountability for US Army members after the Abu Ghraib scandal [0], while I haven't heard about any CIA employee being held accountable in a similar way.
It's one thing to support an authoritarian regime with torture cells because it gives you cheap oil, it's another thing to do it yourself, with your own personel, because with this you lose your moral superiority and tarnish your own reputation. I'm not saying the former is great, it's bad, but that regime is not beholden to the US constitution, laws and judges, unlike the US federal employees.
A good point I heard a senator make in her confirmation hearings [1]: Even if she wasn't involved in torture at all, (and she was), alone the fact that Trump nominated her because he believed she was involved, turns the decision about her nomination into a decision about torture, no matter how much she regrets it in her letter to Sen. Warner (and the letter's regret was minimal).
[0]: Caution, graphic pictures https://en.wikipedia.org/wiki/Abu_Ghraib_torture_and_prisone...
109 generals sounds like a large number. It's a compelling metric!
But, I don't really know how many generals (and admirals) there really are in the military. I just know that the US military is kinda huge, so there's got to be a lot of them. I mean, the Pentagon alone is a massive building (the largest office in the world!) that I imagine being full of generals.
And then, I see in the letter that all of the signees are retired, which expands the total number of generals (and admirals) alive significantly.
I guess, I'm trying to ask a question about metrics, because I face this constantly. The absolute metric (>100 generals!) looks very strong, but the relative metric (nn% of all living generals and admirals active and retired) would possibly be underwhelming. It's no small feat to get a person with a real voice to sign a public letter like that so, the absolute number is big, but if the cause were of broad interest the relative number would be significant too....
On a minor bit of research I see there can only be 231 flag officers active at any time. I don't know how many are retired, but that does indicate the absolute number is a significant relative number. I still just struggle with the right way to report and digest metrics like this.
Active duty generals generally do not comment on political matters. Once they have left military service it's much easier for them to give a public opinion about politics without creating a conflict of interest.
109 retired generals is far more than you can regularly expect on ordinarily political matters. For context, nominations for secretary of defense generally elicit opinions from retired generals. James Mattis, who quite possibly is the most popular military general for several decades, only ever received a couple dozen public expressions of support for confirmation as secretary of defense. The fact that 109 generals publicly opposed any confirmation of a Secretary of Anything, let alone a director level position, and did so in a unanimous letter, is absolutely massive.
“How do you sleep at night?”
I would like to see a concerted effort to document these crimes, issue warrants for arrest, and have customs officials in all ICC-party states ready to flag and arrest any suspected war criminal, in order to extradite for ICC trial. Some countries do this already but we need all of the ICC-party states to do it.
And yes, I get that they would likely just never travel to countries where they may be arrested. But for the powerful, that in itself is a punishment. They may not serve prison time, but we can take away their European vacations.
https://www.ecchr.eu/en/case/germany-criminal-complaint-agai...
https://en.wikipedia.org/wiki/American_Service-Members%27_Pr...
https://en.wikipedia.org/wiki/American_Service-Members%27_Pr...
https://www.wearethemighty.com/us-can-invade-the-hague
"...In 2002, then-President George W. Bush signed the American Service-Members' Protection Act into law, authorizing the use of military force to free its citizens from incarceration and trial by the International Criminal Court. The act, dubbed the "Hague Invasion Act" for the name of the city in the Netherlands where the ICC holds prisoners, allows the President to use the American military to free its service members or those of any allied country who might be captured for trial there. More menacingly for potential U.S. allies, the act allows the United States to end military assistance for signatory countries to the ICC treaty, unless they agree not to extradite American citizens to The Hague."
That law explicitly authorizes the US military to INVADE the Netherlands and attack the ICC in order to free a US citizen on trial there. Netherlands is a NATO member, just like the US!! Not to mention a party to a number of other non-aggression pacts the US has with most Western European countries. That law Bush pushed for and signed makes the entire NATO idea a freaking joke. No country is safe if it ever dares to arrest US military members, no matter how horrible the war crimes committed by them. As they say in the commercials "but wait, there is more!" There are also multiple secret executive actions and DOJ "legal opinions" accompanying that fascist/evil law and the rumor is those secret amendments authorize covert LETHAL action by US special forces against foreign government officials (or any other foreign individual for that matter) working towards bringing a US citizen to trial at the ICC in Hague.
So, I would be thrilled to know what customs officials you have in mind that would be willing to get assassinated (covertly) for doing ANYTHING that can be construed by the US as aiding/abetting the capture and bringing a US citizen to ICC for a war crime trial. Even if you find such kamikazes, no country would dare issue orders authorizing its own officials to perform such acts against US military personnel.
So, no offense, but what world exactly are you living in!?!?
"[N]othing will be gained by spending our time and energy laying blame for the past … we must resist the forces that divide us, and instead come together on behalf of our common future."
Are you attributing based on occurrence or based on decision not to prosecute? Did you accidentally switch them?
The illegal wire-tapping was a matter known to the public before Obama's time and there was a case brought by the EFF during the Bush years. The CIA torture comment most likely refers to the fact that a Senate report on CIA abuses was published during Obama's tenure and led to no punishment that I'm aware of.
It seemed obvious to me that the point being made was that neither party seems to care to hold wrongdoers in government accountable for their actions.
https://en.wikipedia.org/wiki/Abu_Ghraib_torture_and_prisone...
>The call-tracking effort began without court authorization under President George W. Bush following the Sept. 11, 2001, terrorist attacks.<
So the PotUS gave them the authority.
>A similar program was approved by the secretive FISA Court beginning in 2006 and renewed numerous times, but the 9th Circuit panel said those rulings were legally flawed.<
So in this instance the IC was still operating under the authority of the FISA court. Whether the court came to the right conclusions or not is irrelevant to whether or not the agencies were bound to following those conclusions.
>The metadata program was officially shut down in 2015 after Congress passed the USA FREEDOM Act, which provided a new mechanism where phone providers retained their data instead of turning it over to the government. The revamped system appears to have been abandoned by the NSA in 2018 or 2019.<
So the programs being discussed have already been terminated. What more would you have done? Are we going to prosecute judges for making rulings we disagree with?
>The American Civil Liberties Union hailed the decision as "a victory for our privacy rights," though the left-leaning group said it was "disappointed that, having found the surveillance of Mr. Moalin unlawful, the court declined to order suppression of the illegally obtained evidence in his case."<
As an aside, it's wildly funny to me that the ACLU won't defend free speech anymore but they'll defend terrorists and their supporters.
When has the ACLU stopped defending free speech? They defend convicted terrorists or alleged terrorists?
2: ACLU is not a strong proponent of individual gun ownership, according to the article this has been true for at least 30 years.
3: Article makes far reaching claim in headline but mostly focuses about a single issue, the changes to title IX. Clearly the author disagrees with the ACLU, but the article doesn't give any context on the issue. It's hard to tell if it really is an uncharacteristic position for them to take. I think the heritage foundation has hated the ACLU for a very long time, so that's consistent.
>No, they never said that it was illegal. And Jack was always very careful in saying: "We're not saying what the government has done is illegal. We're just saying we can't find any legal basis for this." And there's a difference. There is a difference.
>I did it because I wanted to protect the president. That's why I signed that document. And I felt that there was a legal basis to sign that document. I thought it was necessary to provide that signature.
Former Attorney General Alberto Gonzalez explaining why he signed his name to an order that had no legal basis.
Because the “relevant authorities” didn’t have the legal right to give that permission.
No one is allowed to decide to torture people - it’s illegal even if your boss says it’s okay.
So in your mind, as soon as someone is accused of being a terrorist, no proof is needed. You can just proceed straight to torture.
Oh boy, I wonder if such a system could even be abused? You are basically supporting Gulags and because you think it can't possibly happen to you.
> Why would you prosecute people who were given permission by the relevant authorities?
Nuremberg trials, just following orders?
If this action was ruled illegal, then someone in the chain of command ordered this illegal action - in other words did something illegal. Is the individual who ordered the illegal action going to be disciplined? Is anyone?
I can observe that something has been stolen and still not know who stole it.
This is made much more difficult with the creation of legal entities designed with the explicit purpose of shielding wrongdoers from accountability; like corporations. The idea, as we're told, is that society benefits by shielding risk-takers from accountability; and so we balance this by making it incredibly difficult to hold organizations and the individuals within accountable for their collective wrongs.
No, it's not equitably balanced.
It took a lot of back and forth in court to determine that this was illegal.
Now, if someone does it again...
Then there is the issue of having had a crime committed. A charge must be clearly defined, proved by evidence beyond a reasonable doubt to a jury of the accused's peers, tried in a court with appropriate jurisdiction, and the sentence must not be deemed either cruel or unusual in nature, and they must be brought by a someone with standing. Usually an Attorney General or prosecutor, who themselves wield the power of prosecutorial nullification, or as they prefer to call it so as not to night it's sister phenomena, jury nullification, prosecutorial discretion. The official in that position iseitherelected or a political appointee, so has every reason to be highly selective in the cases that deserve their time, effort, and publicity.
Make no mistake, the halls of justice that are the courts are not by any means apolitical. To give credit where it's due, of all the branches, they are the most noteworthy for illustrating active attempts to be apolitical, but there is still much indirect political taint to be found.
A superficial look at how crimes are processed should make it obvious that people are in no sense "equal before the law."
Someone poor and black is going to have a much harder time of it than someone rich, white, and politically orthodox. Even more so if they're working for one of the TLAs.
The reality is the latter groups get the benefit of a literal stay-out-of-jail card labelled "national interest", while the former are seen as a threat to it.
https://sensenbrenner.house.gov/2018/3/james-clapper-not-cha...
I think the same should be true of our civil servants who wield so much power over the populace.
But given how grim the news landscape looks like in the USA, I'm not very hopeful.
The US constitution needs lots of updates but this maybe the most important item -- manadatory prison terms for anyone acting on behalf of government who is found violating the bill of rights or any restriction set by articles of the constitution.
the US has a flawed democracy, but a democracy nonetheless: https://en.m.wikipedia.org/wiki/Democracy_Index
consider the rest of the countries in that list
For what it's worth, the UK also does better than the US in the Freedom House index, which is _funded by the US government_.
It's like saying you're a pacifist... except for Tuesdays when you go on a weekly killing spree.
I imagine that if we can survive and progress long enough to have real democracy and rule of law, our present system will be viewed a transitional period that, for all its very real improvements, was still structurally closer to feudalism than actual democracy.
Also whistleblowing cases.
I think 90% of people are basically good but don't really want to stick their neck out of line—which means rules by themselves will never constrain the 5% of people that are malevolent. We need to empower the other 5% of people who are willing to stick their neck out to do the right thing. That includes institutionally empowering whistleblowers.
Snowden committed a crime, sure, prosecute him—just give him a fair trial, for goodness' sake.
Agreed. Relying on pardoning is at best a stop-gap solution to a broken system.
Biden is on record saying this is right off the table. He will not pardon Trump.
"Ha! This comment just made me spurt my coffee all over the dog!"
You mean to say a politician is on record having made a promise, and you believe them?
Because that doesn't seem like an argument anyone would intentionally want to make.
https://www.politico.com/story/2018/01/21/president-carter-p...
Though one could also use that same pardon power to avoid prosecution for domestic terrorists that support your agenda or crimes of election fraud. So I'm definitely on the side of revoking one person's power to override the entire judiciary for arbitrary reasons.
I did find https://joebiden.com/justice/ saying:
> Biden believes no one should be in jail because of cannabis use. As president, he will decriminalize cannabis use and automatically expunge prior convictions. And, he will support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a schedule II drug so researchers can study its positive and negative impacts.
> Biden believes that no one should be imprisoned for the use of illegal drugs alone. Instead, Biden will require federal courts to divert these individuals to drug courts so they receive treatment to address their substance use disorder.
Quoting https://en.wikipedia.org/wiki/Expungement
> A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called "executive clemency") does not "erase" the event; rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by the President of the United States for federal offenses
I have no clue how Biden can promise to automatically expunge prior convictions if only judges can expunge a record.
Political promises aren't binding. So you can promise whatever. Politicians in general love to promise things that aren't even within the baliwick of the position they're running for. The one that always bugs me is California mayoral candidates promising to fix the schools, when schools aren't a function of city government at all.
NC passed a Second Chance Act which makes it easier to expunge records, says https://abc11.com/second-chance-act-roy-cooper-signed-into-l... , and "Cases dismissed after December 1, 2021 may automatically be expunged per the Second Chance Act." says https://www.swlawnc.com/blog/new-expungement-law-in-nc which adds that laws in other states have automatic removal of dismissed charges after a period of time.
This means that my quote from Wikipedia about expungement isn't the full story.
The pardon wiped the slates clean for them. That seems like a good thing?
Says who? And why?
>I imagine that if we can survive and progress long enough to have real democracy and rule of law
Why do you want 'real' democracy? What makes you think that getting rid of other non-democratic institutions, like Congress, like the Presidency, and institute Athenian-style mob rule - will make the world a better place?
I am being facetious, and I get what you mean, but do you honestly think your life would be better if this particular, and relatively minor, aspect of the Presidency would be curtailed?
Why even bother saying this?
Each of us can want / advocate for whatever changes each of us prefers in any given moment.
There's plenty of resources in the world, and within each of us, to want better for, say, our kids; more space exploration; a presidential role with fewer perks; an end to hunger; and our local street to be kept cleaner.
I understand that. I'm saying you need a reason to go through the effort of changing the constitution and a 240 year old tradition. This is why I asked what all that effort in getting rid of the pardon would do for the world. And it seems, the answer is not much if anything at all. So my argument is, maybe find something more worthwhile to concern yourself with?
But this isn’t really clarified, and in practice it’s usually used incredibly ambiguously boardering nefarious.
It's also a check of the legislative branch. If someone's convicted under an unjust law, a pardon can restore justice.
IIRC, appealing to the leader for justice has a long history that predates the US Constitution. IIRC, such appeals have been an important safety valve, and the formalization of the leader's responses have resulted in whole new bodies of law (e.g. Equity came from the King attempting to correct deficiencies in the Common Law in cases that were appealed to him, then delegating the implementation and processing the appeals made to him to members of his court).
on the many flaws of democracy: https://en.m.wikipedia.org/wiki/Criticism_of_democracy
also, the democracy index: https://en.m.wikipedia.org/wiki/Democracy_Index
The reason is that we need protection also from the power of judicial branch, which is abusable like any branch with power. Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone. In a democracy, all branches are checked by the others, and this is a necessary check on the judicial branch. It could be done differently (approval by Congress or some third party?), but not having a check is dangerous.
I think the pardoning thing is absolutely wrong in the US form, where it is used quite often. I think it's just crazy that you can do something illegal but if you can just talk one guy into it, you are off the hook.
The only case I see where it makes sense is that there's some corner case that everyone can agree on. But then it would involve more than just one guy on his last day in office.
That said, such a limited abuse would not justify ditching the pardon power. History has shown that not having a pardon power would have been impossible - the civil war would have lasted for decades, there would have been mass charges years after Vietnam, without the option of pardon Nixon may never have resigned, etc. A lot of these aren't corner cases, but they were necessary to still have a country.
IMHO, the by far best solution is to have it in a more limited form so it requires more than one guy.
Congress could have passed acts granting blanket pardons to all involved.
> without the option of pardon Nixon may never have resigned, etc.
It might have been better for the rule of law if he had been convicted and removed forcibly, then subject to prosecution.
That's just a slightly different method of doing the same thing. I agree involving Congress in pardons would make sense.
>It might have been better for the rule of law if he had been convicted and removed forcibly, then subject to prosecution.
It would have also involved more chaos in an already chaotic time, is that better than him resigning? I guess we'll never know.
What's chaotic about punishing a lawbreaking president? Sounds pretty lawful to me. It's how healthy democracies are supposed to operate. Pardoning Nixon set a bad precedent.
As for Nixon, not pardoning him would have led to some very messy politics (does he even quit?) in the middle of the oil crisis/price controls/etc. I have no idea how it would have played out, but the US needed at the time a functioning presidency (more than usual).
Offtopic, but for me that kid did nothing wrong - it was self defence. If he isn't found innocent by court then he definitely needs to be pardoned.
Technically, all judges can be impeached, and all judges other than SCOTUS can be appealed (there's actually a specific writ you can file claiming to be jailed unjustly, habeas corpus).
In practice, impeachment hasn't proven to be much of a check on judicial power (recall elections have probably been more effective overall), but I think the appeals process more or less works and I don't think the pardon power has added much, on balance. I think unilateral pardon power by a political official has proven sufficiently ripe for abuse that I would even support adding limits like some kind of Congressional check, but it's definitely nowhere near a top priority.
Obviously the appeals process has had plenty of failings too, the Japanese internment camps being the most famous example, another high-profile one is Lincoln suspending habeas corpus during the Civil War.
This doesn't vacate the original judgement, which is nigh-unappealable if made by SCOTUS. There are also cases when impeachment isn't warranted but a pardon still makes sense (I gave examples in another post in the thread). I think adding checks on pardon power would be enough to deal with abuse of pardon. You're right this isn't a top priority.
If my choices were status quo and status-quo-except-pardon-power-is-abolished, I would probably prefer the status quo, because law enforcement overreach is currently a bigger problem than abuse of pardon power. But you made a much stronger statement: "There's no choice in a democracy but to have something like the pardon power." I disagree with that, I could easily imagine a much more just and fair democratic system where all recourse to judicial overreach still involved a decision by a judge at some point.
As I wrote, if I had a say on this I'd go for a more limited pardon power than the current situation. I suspect our positions in the end aren't too different.
Not necessarily. IIUC the American President's pardon power is based on the British monarch's pardon power. The role of President was conceived (consciously or unconsciously) as an elected, non-hereditary monarch. He had many of the same powers - veto, commander of the military.
> Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone.
That would require every judge in every court up to the highest court to be bad.
Perhaps, but there are parallels in other democracies.
>That would require every judge in every court up to the highest court to be bad.
Technically, only the highest court would need to be bad, and it can order the others around.
The pardon power, however, was never traditionally treated lightly, as it's use practically guaranteed you'd be right ticking off a potentially very large swathe of the populace by upsetting the smooth operation of the other branches. It was a check, undoubtedly, but one best used only wisely if for no other reason than to reassure the populace there was a commitment to faithfully executing the laws of the land, rather than everyone being at the mercy of a capricious and unstable tyrant/nepotist/other type of person you wouldn't want to see in the highest position of authority in the country.
It isn't, it's actually an integral part needed to make the entire thing work. The problem is when it isn't treated with the restraint due to the role it is meant to fulfill. The President is a short-cycle control mechanism. The legislature longer, and the judiciary the longest based on the sheer weight of precedent they need wade through.
Now, interestingly, and somewhat tangentially. There is a moral/traditional controversy over whether the President can legitimately abuse the Pardon power. There is a body of scholarship that hold that the Pardon is meant to be applied only when the President is acting to further the interests of the Nation.
To riff through some examples of how that plays out, (as mentioned elsewhere downthread): Civil War Confederate Amnesty, A-Okay. Carter and the draft-dodgers, a-okay, Clinton pardoning his brother on his last day in office? Absolutely not okay,as it wasn't furthering the interests of the country as a whole. Nor would Trump's pardoning necessarily qualify.
That isn't law though. That's ethos, and tradition.
I'll tell you why you're baffled. Those kinds of issues tend to be very complicated because the world is complicated and messy. However people don't do well with grey and nuance, so instead they try to map it to something they can get a handle on that match their world-view and ideology and reinforce by reading highly partisan summaries (where the opinion just so happens to match their own) and staying in a bubble with other like-minded partisans.
Eventually this is going to lead to civil servants being lynched.
https://politics.stackexchange.com/questions/26724/what-is-t...
It seems like everywhere from roommate, landlord, business, or partnership contracts, we seem to write down rules but not consequences or penalties. Oh you were supposed to pay rent or this invoice, but I can't make you do it? What's the point of contracts?
The time I owned property with someone, I at least had the foresight to add two clauses. Right of first refusal (obvious), and another clause that if either party were behind on payments the other party could trigger arbitration, and one of those outcomes could be to force a sale (then looping back to rule #1).
But the 'punishment' in this case is that one party loses their ownership, and the other party either has to cough up a ton of cash or lose it too. In this case I had decidedly more liquid assets so I had an idea how that might play out if things went south. But I'm sure there are a ton of things not covered, and really weren't suggested by the lawyers.
Whatever penalties exist for the lawyer leaving a huge surface area for litigation, those are pretty opaque for the rest of us and I think they like it that way. Capital L Law just seems like a giant conflict of interests straight out of the gate.
Low trust societies have to build in enforcement mechanisms for everything because if you don't, someone will cheat you for the slightest advantage and life inside them is punishingly inefficient. High trust societies rely on people to do the right thing out of a sense of civic pride, decency, group cohesion or some other regulating force.
Look at sports for example, the rules are written out in excruciating detail that account for the most unlikely of edge cases. What are the consequences of not following them? Well, outside of professional leagues, really nothing except people won't want to play with you. Why go to so much effort with the rules? Because the rules are what makes playing soccer different from playing rugby. They're what make the game the game.
Without punishment, it is not "rule of law" it is "guidline of law"
That's not true at all. In high school I was a soccer referee, for a recreational league. If you broke the rules of the game, I stopped play and the other team got a free kick. If you did something violent or egregiously dangerous, you got a warning or got ejected from the game. The league had policies around ejections; accumulate too many of them in a short time and you were kicked out of the league, usually permanently.
I guess you can reduce that down to "people won't want to play with you", but that's a pretty significant consequence if it's a sport you enjoy playing.
If he was married and it was a conjugal asset, that would be another matter, though.
The program (and it's replacement) has been around for two decades. It was passed into law by Congress, administered by the executive branch and justice department, funded by Congress, and overseen by the Judiciary and Congress. So punish who? And for what crime? Based on what law? That the the ninth-circuit ruled that the collection overstepped some bounds is not a criminal indictment, but rather a normal part of the process. And who knows if it won't be reversed.
Just like doctors face malpractice lawsuits and felony charges, so should govetnment officials that intentionally violate citizes' rights.
I saw a video the other day where a cop arrested a person for insulting him. Worst case he would lose his job, but no punishment! This NSA case is a small example of a systemic disease.
But we don't live in a world where things work like you think they should work. In this world, there was no crime, and a court opinion of some aspects of one kind of law does not lead to criminal indictment. That is a better world then the imaginary world that lives in your head.
You do realize government is run by humans in a messy world, trying to figure things and and deal with all kinds life-and-death stuff - like terrorism (which is the context for that law in the first place). Let's set aside 9/11 and terrorism and look at government policy around this pandemic. This pandemic has led to unprecedented government abrogation of civil and citizen rights. It is unprecedented that government would forcibly lock-down huge swaths of the economy for dubious reasons, and destroying countless lives - as well as control what HEALTHY people do with their bodies. Do you know why nobody gives a shit? Because nobody gives a shit about what lawyers on a court have to say when people are fearful for their lives. We see this during wartime (and civil war was a great example), and other extraordinary situations. The only power the constitution has, is the power that is imbued into int by the populations willingly submitting to it and willingly raising it up as a model.
When life-or-death situations arise, the constitution takes a back-seat.
Mandatory sentencing removes any possibility of judicial discretion.
And then there's the problem that gaol tends not to reform people.
And we can pretty much guarantee any high-level judge who starts handing out guilty verdicts to high level government bureaucrats will swiftly find themselves unemployed, or worse, and replaced by judges who don't do that.
It seems to be the closer we look at high-level government bureaucracy the more similarities we see with organised crime.
Fail upwards indeed.
In USA, federal judges are appointed for life. They may be impeached by Congress, but the general public will notice when Congress impeaches the first judge in living memory who attempts to impose the rule of law on the bureaucracy. It will take a change of heart, however. Anyone who has any inclination in this direction would never be appointed in the first place.
For example, when is a church’s hiring practice an equal protection violation? Or is it an exercise of freedom of religion?
That's such a bad idea but it would cause so much juicy drama. I would take a year of that over 2020.
Edit: fixed misspelling of rules, had rupes
.
With your example, if it is found that the law was crafted with intentional ignorance of freedom of religion, then the lawmakers that introduced it should face punishment, if the judge also intentionally ignored this right (and this can be proven) not because of their understanding of the law but because their intentional ignorance of the right, that judge should be punished. And a law enforcer that intentionally violates citizens' rights should also face punishment.
What does that have to do with the OP? There are many states that allow Open Carry today.
The original comment stands - Californian views are not universally shared throughout the country. This is the very reason we have States in this country, each with their own government.
Trying to compel people in other states to live the way you think they should, isn't right.
Hell, they passed more than 5 in the last 2 years.
I’m not going to argue if it’s a good or bad law, but as written, each state gets to regulate which residents get nothing more than a butter knife, or a nuke, and where the state keeps those things. Arms !== rifles.
The reason why a states militia would be an issue is that it's just mostly useless. States aren't allowed to meddle in foreign policy, so what would the militias do?
Civilians can own things like howitzers, mortars, etc. At least at the federal level, state laws vary.
Check out the Knob Creek event held every year. Tons of military weaponry, all privately owned.
A lot of people (on HN at least) seem to think it's a problem that the First Amendment only applies to Congress, letting companies like Google or Facebook censor speech as much as they like.
The Second Amendment isn't even written in complete sentences, and we need a room full of scholars to figure out just what exactly they meant by "A well regulated Militia,"
The Third Amendment just seems absurd in the modern day.
Maybe we don't need the Electoral College?
Maybe the President's powers to draft executive orders and pardon people undermines the legislative and judicial branches and should be done away with, given how often they've been abused?
It must be possible to have a more efficient census than through the process required by the Constitution.
It should be possible, in a nation of immigrants, for an immigrant to run for President.
There is no Constitutionally guaranteed right to vote. Amendments related to voting, yes, but nowhere is voting considered to be a right, as opposed to a privilege.
Do we really need to explicitly make the justice system an exception to the Thirteenth Amendment and banning slavery?
That's all I could think of off the top of my head, not being a constitutional scholar. But it stands to reason that a document as old as the Constitution should be updated more often than it has been.
As someone who designs distributed systems for a living, I can say very confidently that the electorate system is a very good idea indeed.
Why risk the entire system if a single small part is corrupted?
All the redundancy with none of the downsides of the Electoral College.
Protests against Electoral College are a distraction from possible and substantial reforms, like ranked-choice voting and ending interstate crosscheck and similar disenfranchisement efforts.
That constitution was based off of about 2000 years of legal and political theory stretching back at least as far as the Roman Republic, and even the Greek democracies, and written with most of the intervening political history in mind. To say that 200 years makes that much of a difference needs a lot more justification than "it stands to reason".
People say technology is a factor in why we should update the document: I would respond that the human nature which necessitated the clauses assembled in that document haven't changed. Technology has simply accelerated the negative (and positive) effect of the same human tendencies the constitution is already attempting to protect against.
I would suggest that the maxim that's been mentioned on here recently, "don't tear down a fence until you understand why it's been put up" would apply. And the understanding of why the constitution is the way it is requires a breadth of reading that includes Seneca, Plato, and many others. Not to mention the documented discussions between the folks who wrote it.
It's because it can't reasonably work like that. At a certain point, defining punishments is moot, because there's no higher authority to appeal to for enforcement. If the Constitution says "Congress shall make no law..." and Congress still makes a law, what are you going to do, throw Congress in jail? That's nonsense. The Constitution, for the most part, just states norms and procedures that the the country and government have decided to follow voluntarily, not because some authority will punish it if it doesn't.
> The US constitution needs lots of updates but this maybe the most important item -- manadatory prison terms for anyone acting on behalf of government who is found violating the bill of rights or any restriction set by articles of the constitution.
That might actually be unconstitutional ex-post-facto punishment. Many violations of the Constitution or Bill of Rights aren't clear until some court case interprets some action as not being in compliance. Would you have every county clerk that ever denied a same-sex marriage license or defined procedures to do so go to jail after Obergefell v. Hodges?
Not so much any longer. The US incarceration rate is at a 20 year low and keeps falling. We've been reducing the prison population for a decade now.
For example the black male imprisonment rate began declining finally during the second year of George W Bush's Presidency. It has dropped by around 36% since the year 2001.
The US incarceration rate began declining about the same time we began building more private prisons (for the record, I'm ideologically against private prisons), which entirely goes against the common propaganda that private prisons would result in a lot more people in prison. Turns out, of course, that it was evil government actions and policies that did all those very bad things, like the war on drugs and putting millions of people in prison unjustly and holding them there for excessive durations of time (mandatory minimum sentencing laws).
Technically true, but man oh man do we have a ways to go before the war on drugs is mitigated[1]. Based on the trend of the last ~10 years, we're due to reach 1980 levels of prison population in the 23rd century[2].
[1] https://commons.wikimedia.org/wiki/File:U.S._incarceration_r... [2] https://www.sentencingproject.org/publications/u-s-prison-po... (eye-balling Table 1)
https://www.sentencingproject.org/the-facts/#detail?state1Op...
Huh? What's that supposed to mean in this context?
And while throwing Congress in jail seems unworkable, disqualifying members from reelection in egregious cases might be doable (though of course it would require a constitutional amendment).
I don't think so. Do you really want the executive and the courts be able to disqualify representatives, essentially for political reasons, because they proposed legislation or supported legislation that a president has signed into law?
Congress was elected. If they are doing a bad job, the voters can recall them. There's no need for lower officials to deal with them.
If the majority of the voters are wrong, then your "democratic nations of laws" is dead.
Technically, that higher authority is the people themselves. Bear in mind that the Constitution was written in a context where the governed people successfully held their government accountable at the business end of their hunting rifles.
No they didn't, look up Shay's Rebellion and the Whiskey Rebellion as examples. The US government has never been successfully "held accountable" at gunpoint.
Britain as an entity certainly faced consequences from US independence, but they didn't behead the queen (which *did happen 20 years later in france).
Declaring independence from a distant seat of government is vastly different and vastly easier than trying to overthrow the local government.
I'm not talking about punishment or punative action. I'm talking about accountability, where being 'held accountable' could be a synonym for 'held responsible'. In this case, the way I used the phrase, Britain was 'held responsible' by simply being told to 'go away'.
I agree that many people blamed the British Government for their problems, indeed that was the impetus for the revolution, but accountability of the British government was limited to none.
you: Britain as an entity certainly faced consequences from US independence
me: The 'holding accountable' was the revocation of Britain's authority over the colonies.
Glad we agree.
(The Oklahoma City bombing was the biggest terrorist attack next to 9/11 and yet never discussed in any history class I’ve taken, while the latter is discussed in virtually every class on any subject on its anniversary. Probably an interesting reflection of xenophobia (probably among other things) I think.)
No government sponsored curriculum is going to open the door to the very tough questions that the first two parts of that trilogy naturally raise. It's the same reason people are never taught about the Indian wars or Jim Crow south except that "they existed". If people learned about how many times the government straight up violated treaties it signed and how many times state governments intentionally used the forces at their disposal to disenfranchise blacks then people wouldn't trust the government. The career arcs of the kind of people who think these things should be learned don't tend to put them on the committees that set state curriculum.
> Technically, that higher authority is the people themselves. Bear in mind that the Constitution was written in a context where the governed people successfully held their government accountable at the business end of their hunting rifles.
I should have probably said "there's no higher institutional authority to appeal to for enforcement." When you're talking about jail-time penalties, I think you're talking about something that's institutionally enforced.
At this point, the only check is the people via elections; but I don't think unconstitutional laws are passed for some private purpose, but rather to satisfy some popular political demand (like "never again"). Such esoteric concepts like the unconstitutionality of some particular law aren't often at the top of voters minds, either.
At least in the current climate, with the level of disunity and polarization, any attempt at a revolution would be a civil war where (in the end) half the country loses a good chunk of their civil rights.
Actually, it's nonsense to think anything to the contrary. Either our founding document matters as the backbone of our Laws or it doesn't. Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract.
> The Constitution, for the most part, just states norms and procedures that the the country and government have decided to follow voluntarily, not because some authority will punish it if it doesn't.
It's not a document of 'norms' and 'procedures'. It's a structure of how our Republic is built. Either we have a structure or we undermine it. That's really it, full stop. Amendments are apart of that structure to build or take away for what that structure is to be. Not 'ought to be' not 'suggested' not 'maybe if you'd like to follow', it's a mutually agreed upon Law.
[edited: minor edits for added clarity]
Nitpick, the constitution isn't a founding document. There was that whole Articles of Confederation thing.
Congress isn't the final authority of if laws are constitutional or not. The courts are. Congress and the Supreme Court commonly disagree on the constitutionality of laws. What you're proposing is essentially a oligarchy lead by the Supreme Court.
>Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract.
There is no social contract based on the constitution. It's just that enough people agree that it has value, so it does. That's not a social contract. No regular people voted on the Constitution. You don't have the ability to reject it if you don't agree with it.
Nitpick. The people who were sent as representatives from each state to help write and ratify the constitution were chosen by the people of that state. So technically, through representative democracy, the regular people did agree to the constitution because their representatives agreed on it.
>> xxpor said: Not the same thing IMO.
It actually is. This country is not a direct democracy. You are trying to reinterpret the structure of this Republic. The people through their votes uphold the structure every time they vote. It's a collective decision (social contract) to have our vote to have representation and we 'trust' (for lack of a better term) said Rep. to perpetuate the ability of governing.
[edited: accidental pasted something additionally]
To be honest, I kind of wonder whether it was better to let the State Legislature decide. Wasn't alive then though and haven't done the research.
It seems you don't understand the difference between how the people directly elected US Senators since 1913 versus a State Republic that was voted on.
These are two very different things. I say very because one is more Democratic and the other is more Republic. A Republic is an indirect mechanism whereas Democratic is a direct mechanism.
Let's totally 'nitpick' because the structure that our entire government is built upon the Constitution. "The first, The Articles of Confederation, was in effect from March 1, 1781, when Maryland ratified it. The second, The Constitution, replaced the Articles when it was ratified by New Hampshire on June 21, 1788." [1]
If this 7 year gap is something that's causing you issues, just know that today that we aren't judged by 1900 laws. We're judged by the living document called the Constitution, as it 'replaced the Articles when it was ratified', and auxiliary laws via State/Local govts. But the backbone is the Constitution.
>Congress isn't the final authority of if laws are constitutional or not. The courts are.
In theory, sure. But Dred Scott said one thing (no Black person is free, even in the North) and the people in the North said something else with their 2nd amendment rights.
>What you're proposing is essentially a oligarchy lead by the Supreme Court.
Actually I'm not. A law can (and in many cases, already does) include what appropriate punishments should be for a law that is broken.
> There is no social contract based on the constitution. It's just that enough people agree that it has value, so it does. That's not a social contract. No regular people voted on the Constitution. You don't have the ability to reject it if you don't agree with it.
These statements are entirely false.
1) Your first sentence and your second sentence are contradicting each other. ~'no social contract' vs ~'what a social contract is'.
2) As for the latter two sentences. We vote everyday with our citizenship. You either agree to that living document or you don't by your allegiance. No one is forcing you to be a US citizen ruled by Constitution, namely after an adult legal age. Constitution is just American's structure, it can be changed but within it's already given framework. The country could become a Communist rule of law, if it got ratified, whether an individual liked it or not.
Rejecting US citizenship is difficult and costly, this places it practically out of reach of most US citizens
Freedom isn't free.
The US demands ongoing duplication of information which they already have access to due to international income sharing laws and has an expectation for a portion of the income I earn entirely overseas. The only thing I get in return is the ability to "reactivate" my citizenship at will, but that's only because it costs about 7k to actually revoke your citizenship and your taxes are going to get reeeeeally closely audited for any missing back-taxes.
You say that like anyone can just up and walk away. Where are you going to go? The borders are closed. If they weren't, they're going to want your tax money for a while, and if you don't like that you'll be deported and imprisoned. Disagree with any of that enough at any stage and your citizenship will be enforced with violence and death if need be.
This isn't a nitpick, this is simply irrational. The Articles of Confederation were the founding document of an institution called the "league of friendship," and although the Constitution inherits ideas from the Articles, they have no legal bearing on the latter. They're out of scope.
Meanwhile, the Constitution literally constitutes the foundations of an institution called "the U.S. federal government" which, discounting some rather academic Theseus' Ship arguments, is what governs us, today.
The constitution was no the first document written on this continent, but it is the last document in which we've invested our collective institution-reifying intention at the national level.
That's definitely the definition of a social _construct_, if not a social contract, but it amounts to the same thing.
Overall agree that we shouldn't be throwing members of Congress in jail over good-faith disagreements of constitutionality, etc.
However, "Supreme Court oligarchy" is a stretch. Even if their rulings could send lawmakers to jail.
Amending the Constitution is always an option, and that's a 100% Legislative (Federal + 38 States) action that neither the courts nor the President can block.
With enough consensus, the Legislature (and by proxy, the electorate) technically have all the power.
1. Constitutional + simple majority + Presidential support = law.
2. Constitutional + 2/3 majority = law.
3. Unconstitutional + 2/3 majority + 38 states = law.
But, broad consensus among the electorate is hard to come by these days, especially on contentious issues.
Instead, both parties rail against "activist judges", stack the courts every opportunity they get, and regularly pass laws/programs with debatable constitutionality to constantly push the boundaries.
This is likely the correct "play to win" strategy too. I just wish people played the game as intended.
So, definitely understand the appeal for some sort of "punishment" against bad faith lawmaking, etc. Even if untenable in reality.
Actually, the legislative branch is the final authority on what is Constitutional or not. Who do you think proposes, passes, organizes Constitutional Conventions, and ratifies Amendments?
It certainly isn't the Courts. Heck, judicial review isn't even enshrined in the Constitution, It just arose spontaneously out of case law; and everyone has been okay with it by and large such that there hasn't been the will to pass a "no judicial review" Amendment.
I mean, it seems silly to talk about, but it is right there. Though yes, for the last 200 year's, the Supreme Court striking down something as unconstitutional has generally been accepted as burying something six feet under politically, because no one in their right mind wants to carry the mark of "The person who changed the Constitution just to invalidate a Supreme Court decision."
> Actually, it's nonsense to think anything to the contrary. Either our founding document matters as the backbone of our Laws or it doesn't. Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract.
Huh? You're right that the Constitution defines the social contract, but it's still nonsense that violations by branches of the government itself should result in jail time. Checks and balances is supposed to ensure compliance, and honestly any attempt to add jail time to the mix would probably have all kinds of disastrous consequences to the balance of those checks. If this governmental system is to by dynamic enough to survive, its parts need the ability to probe the boundaries as needed. That can't happen if the people who make them up are paralyzed in personal fear of being jailed for a misstep. The framers themselves recognized that, since the Constitution isn't full of threats of criminal penalties. Even impeachment is deliberately just a removal from office.
> It's not a document of 'norms' and 'procedures'. It's a structure of how our Republic is built.
It's both of those things. If all the branches of government conspired to violate the Constitution, all that would happen is the country enters into an undefined state. If they were willing to do that, do you think they'd enforce penalties of jail against themselves for their violations? The Constitution itself isn't going to leap out of its case to arrest them.
The people will, though. As I mentioned elsewhere, the final authority in the US are the people who chose their representatives in the government. If the highest level of government decides to break the law, then the people themselves enforce it.
> The framers themselves recognized that, since the Constitution isn't full of threats of criminal penalties. Even impeachment is deliberately just a removal from office.
I separated the quotes to add emphasis.
The founders leaned very much in the direction of aristocratic, not all but it was the prevailing thought hence Republic instead of direct democracy.
As for the 'disastrous consequences', 'Constitution isn't full of threats', and 'impeachment is deliberately just a removal from office'.
I understand your points and they are historically accurate. One can see through the 'norm' that was created by President Ford pardoning President Nixon, that this understanding persists even in more recent history.
My words are a desire to see an amendment/law/ruling to go further in holding these leaders of our government accountable. As it's toxic to maintaining the social contract within our society, IMHO. If we are lenient on political corruption, even the foundations will crumble, IMHO.
Besides Hamilton, they absolutely did not. They were just anti-direct-democratic because they were well aware of the logistical problems, and structural ills of prior democracies. There is no concept of "Nobility" in the United States. We have Civil Servants. People who as a consequence of their office, in many ways have much higher legal exposure than the normal citizen. All Citizens may take any office with only mild qualifications on Age, literacy, and how one is chosen to get there.
That is the exact opposite of Aristocratic. That leaning is a much more recent thing that has emerged out of nearly half a century of political and economic consolidation through wage stagnation and technological advancement paired with a complete dismantling of top-to-bottom wealth redistribution, whether by market forces/government action notwithstanding.
>>My words are a desire to see an amendment/law/ruling to go further in holding these leaders of our government accountable. As it's toxic to maintaining the social contract within our society, IMHO. If we are lenient on political corruption, even the foundations will crumble, IMHO.
The founders actually culturally understood this believe it or not. If you look back in history, you can find numerous examples of incitement to refuse to engage in base behavior in executing the duties of office. It isn't universal, but the examples are relatively generous in frequency of having been recorded. You can also find many of the Founders personal papers and nuggets of wisdom warning that there is no greater danger to the Union than to the undermining of it's legitimacy through unwise or impulsive action or political theater.
Abraham Lincoln came to treat his responsibility to the country as something close to religious. Franklin, Washington, Hamilton, and Jefferson all realized that a State would only last as long as the people running it could comport themselves as more-than-a-person in the fulfillment of their duties to the populace, and that the populace remained United in their respect and maintenance of each other's liberties, even in the face of taking on personal risk for the preservation of their fellow man's freedom.
Lincoln himself saw litigation and to a point legislation as a fundamental breakdown. The raising of an exception, if you will, of such a magnitude that it took the body of the Nation coordinated through it's elected Government to resolve the ill so rampant that not even a town could alone fix the issue.
How would you define the ability to vote, as only going to select white men? Land owners of a certain acreage, looks like only 6% of the population fit that bill [1].
These people were a bit contradicting. 'All men' didn't mean all men. It meant all, white land owners. Also, to be clear, the founders and early civil servants were upper-middle-class British that moved to America to...have their stab at trying to become upper-class.
I'm not sure how you quantify (facts/evidence) your statement that "That is the exact opposite of Aristocratic". As this would be considered historic revisionism. Aristocratic might not be the most precise word (elitism goes too extreme) but it gets close enough to the vein of truth to understand my point. Selected few men, rule over the masses, by design.
> The founders actually culturally understood this believe it or not.
I wholeheartedly agree with this entire point you made here. I would go even further that the founders rigorously debated my point of govt officials accountability and they settled with the three branches as sufficient. But they intentionally left the door open for later terms to legislate/adjudicate which is again what I'm advocating for.
Great response by the way.
[1] - https://en.wikipedia.org/wiki/Timeline_of_voting_rights_in_t...
Aristocratic comes with way more baggage than what you describe; and you only have to look at jolly old England to see that. To be an Aristocrat. You had to be landed, but you also had to fit somewhere in the Peerage or established Nobility. That whole system of class stratification? That came with an entire Parliamentry House in the form of the House of Lords.
https://en.m.wikipedia.org/wiki/House_of_Lords
Where you ended up with the privilege 0f being a 0art of it being determined entirely on whether you were born in "aristocratic class".
That was quite literally considered the norm in most European countries at the time. Nobility was mum. Some Men just had a better lot in life. You got born into it, and it came with an entirely different social scene, responsibilities, perks, culture etc from 80 to 90% of the rest of the population. That was normal. If you were in, you had weight in policymaking far beyond the common man, you were Nobility. You could read, you could count, your family had proved their mettle, you were a treasure "revered" by your National edifice by definition, because you were noticed.
Then this crazy colonial bunch of States pops up, and all you have to do to have a say. Or participate in a major way in running the place is to get some land (cheap, and basically free in the sense you won it with sweat equity in those days), not be a slave to the regional authorities, and be able to show up to your communities meetings. That's it. If you were literate, you could end up getting picked to hoof it off to Congress, which at that time didn't pay anywhere near as generously as it does now, and would have to leave your life in the hands of your family, for weeks at a time. This was revolutionary at the time. Was there racism? Yes, absolutely, but there was no Aristocracy. There was no hard division of the classes of citizen like you'd get elsewhere. The landholding requirement was not onerous like it is now, and in fact, our history is filled with dead National Banks in part because people realized that they tended to disrupt the egalitarian baseline since financial institutions like such tend to end up being resource consolidation points away from the individual Citizen. Jeffersonian Democrats were particularly sensitive toward this issue. Even Hamilton at his worst imagined not an official Nobility, but that events would inevitably conspire to generate a class of "Merchant Princes" in America whose wealth allowed the to devote resources to exercising an oversized influence in the operation of Government, a reality we are arguably seeing, but has actively been fought against at other times in our history. We've had 100% tax rates in the United States.
The whole "no blacks" arose not out of a formal Aristocracy, but out of the set of compromises that kept the country operating as a single unit. The South needed it to stay functioning. And even then, for the time, it was revolutionary as wide a swath of the population had as recognizable a chunk of input as they did. Over time, things have only gotten more accessible, but they had to start somewhere. From the standpoint of a fledgling bunch of ex-colonies banding together, that made sense.
Get land? Cool, you aren't going anywhere, enjoy your vote. You didn't have phones for pools, mails and mass printing for distribution of campaign materials, and you had to have your affairs in order enough to have the "leisure time" to meaningfully participate. They basically wrote down as a requirement as broad a se f ignition of voting base as wasn't unworkable controversial at the time.
You never answered my question, "How would you define the ability to vote, as only going to select white men?"
My point still stands as historically sound. The founders/govt were upper-middle class by England's standards and they recreated a very similar aristocratic structure here in the 13 colonies but with the founders at the top.
My point can also be supported by how State Legistatures would pick Senators, the electoral college, lifetime appointments to SCOTUS, lack of term limits on Congress and POTUS. These are all putting power in a select few. The select few aren't as wealthy as England's elites but the founders were very rich (the elite of American society).
>You never answered my question, "How would you define the ability to vote, as only going to select white men?"
I actually did, but the typos may have minced it. You say they created a System where the vote only went to "certain white men". You're not really appreciating how wide that swath was. I offered the example of the House of Lords (peopled by actual aristocrats) as a contrast point.
The Peerage and Nobility is intrinsically woven into the concept and definition of English social and civic life. There is no 1:1 mapping of that same characteristic in the United States. There is no Aristocracy.
You look at "only landed white men" could vote, and don't realize how drastically that diverged from the European cultural baseline.
These landed white men didn't even have recognized and venerated and chronicled names. That was a revolutionary disbursement of power at the time. Johnny sets up a homestead, he gets to vote. Lack of suffrage for everyone else wasn't even mainly an issue of "Everyone without it is inferior;". It was chosen for it's uncontroversial nature amongst the founders and their contemporaries. They were building a Nation, remember, and the seed of Unity had to start somewhere. It's an example of incremental value delivery.
They needed some edifice capable of doing the things Governments was expected to do, which means they needed to start building that kernel of "get things done" that people could buy into and go with. So that's what they did. Amongst themselves they built the most revolutionary, egalitarian government they could at the time. They also built in the measures whereby all the assumptions and policies they enacted to create unity at that time could be modified by popular consensus as times progressed. Just as a plant starts with a Seed, so too did the Nation in that group of upper class white men, who wasted no remarkably little time on the Nation State scale of time expanding suffrage. voluntarily, I might add.
As to Senators being appointed by State legislatures, that was due to fundamental changes in what the role of the Senate is. The Senate was not intended to be reflective of "the People" at all. It was meant to represent the interest of The State's themselves where "The State" here is defined as the respective government apparat put in place by the People of each State.
Each State determined how voting for State Senators was done, and to my knowledge, at the State level, it is still direct election by the voting population at large. So you had that level of people expressing their confidence in someone to take on the mantle of overseer of the fundamental architecture of government. However, when it came to the Federal level, it was delegated to the State apparatus to choose the ones among their number most well-versed and capable of not only representing their State's interests, but balancing them against the competing interests of other States.
Without mass media, this arrangement made sense. You wouldn't know a Senatorial candidate from the other side of the State from Adam, but other State Senators would.
If you look at the patterns the Founders favored, it was always balances. Everyone gets to weigh in on overall direction, but the nagging details get handled by a smaller more deeply versed group with longer tenures/more experience because the devil is in the details. Start with the widest workable suffrage everyone could agree on, landed men who could show up and weren't deemed impossible to accommodate by the culture of the time, and have faith that men's good nature would see that spread wide in short-order; with a hedge against men's worse vices through deemphasis and deglorification of public service.
It was a different world back then. Just as kids growing up today will seemingly never know a U.S. before 9/11 screwed everything up, so too was the Overton window different back then.
Human beings are as much victims of the constraints imposed by the physical, economic, and social environments of the Times they Live In. The accomplishment, and great Humanitarian Gift of the Founders, was the Founding of a Nation whereby with Unity would come prosperity, safety, good fortune and freedom for all if only men endeavored to keep it so, and drive it in that direction.
History is full of the stories of how things didn't go to plan, but it is also full of examples of a Great Nation giving rise to Great People to do Great things, even from humble origins.
The Electoral College arose out of the Founders dedication to bicamerality. They trusted the population with Candidate selection, but once again, the work of figuring out who amongst the candidates was best was reserved for a small group of directly elected Electors. To them, under assumption of good nature, was entrusted the final responsibility of Conscience and wisdom into which candidate was most trustworthy to hold office. A decision best confined to smaller groups, away from the crowds. If it's a good fit, the extra step of the Electors wouldn't make a lick of difference. If it was a bad fit, but they could work a crowd, the Electors should weed out the unfit candidate. Check the Federalist papers on that one.
That went sideways when national political parties came about, but that's life.
The lifetime SCOTUS appointment was a concession toward attempting to keep the judiciary independent from the political arena and at least constrain the politics to appointment time. Even then, most nominations are encouraged to be of a fundamentally balanced nature, with track records that also encompass going across the aisle, and not taking undue liberty with interpretation of the law. Again, not perfect, but it mostly worked. It got us to the point where you and I are having a reasonable discussion over whether or not there was foul play at the heart of architecting things such that one or another group is kept at a severe disadvantage; which in all my research I haven't found clear evidence of. The emphasis has always been maintaining a governmental edifice that works, and changes with the mores of the time.
There have been undeniable bad calls by the government in history to be sure, but those weren't "all according to plan". They were emergent reflections of society at the time, just as the chaos we're experiencing now almost assuredly is. I never in my life dreamed the American System and way-of-life could end up in the painful straits we're in, but neither did any of my forefathers when they had their civic faith tested.
I shed a tear everyday, because at a minimum, the change we're experiencing is the system working as intended. Assumptions long unquestioned getting their due attention. This is it. This is the Legacy of the Founders, the marvelous machine they built, for the good or ill of their descendants. The winds o
You can credibly say that it sure smells like an aristocracy nowadays, and I won't argue. Back then though? Absolutely not, and never with a clear premeditation to create an underclass, a characteristic of Greek civics they despised as I recall.
>> I said this: I'm not sure how you quantify (facts/evidence) your statement that "That is the exact opposite of Aristocratic". As this would be considered historic revisionism. Aristocratic might not be the most precise word (elitism goes too extreme) but it gets close enough to the vein of truth to understand my point. Selected few men, rule over the masses, by design. [1]
I'm not sure why you went on multiple different tangents but my main point is above and hasn't been refuted. It's almost as if you don't understand the definition of aristocratic (addressed later).
>You said: You can credibly say that it sure smells like an aristocracy nowadays, and I won't argue. Back then though? Absolutely not.
No. It was aristocratic then. It wasn't British aristocratic then but it was aristocratic, nonetheless. Yes, it was by design or else there wouldn't be a Republic. I'm not deeply a scholar of the time period therefore I can't say whether it was malevolent or not.
> Wiki says: Aristocracy (Greek ἀριστοκρατία aristokratía, from ἄριστος aristos 'excellent', and κράτος, kratos 'rule') is a form of government that places strength in the hands of a small, privileged ruling class, the aristocrats. The term derives from the Greek aristokratia, meaning 'rule of the best'. [2]
The founders didn't merit their land ownership nor the ability to read/write nor merit being white nor merit being male nor merit many other factors. It was circumstantial, largely through no agency of their own, which is privileged. They did use that privilege to attempt something new which was more Democratic than most forms of govts. Regardless, they were aristocrats. /end for me.
[1] - https://news.ycombinator.com/item?id=24361561
[2] - https://en.wikipedia.org/wiki/Aristocracy
(edited for formatting)
Furthermore, you missed the nuance of the Greek way of life vs. the reality of the American System. Which is that anyone can run and hold office. You have to campaign well, but there is no privileged class you must be a member of. You need only be the bearer of the right ideas at the right time.
That now, it may be woefully out of reach for those who have to hold down a full time job, and is really only attainable once you've gotten yourself to the point you've got a decent social and support network, still doesn't make the American System an Aristocracy. Just a pain to get ahead in, and much more likely to be participated in by those who aspire to politics.
The other "tangents" were refutations of your assertion that various aspects of the architecture of the early American government were specifically attempts to create an aristocratic class. They most certainly were not and even a cursory reading of the Federalist papers demonstrates that while there were some Founders who were favorable toward the idea there were just as many against it. Following any of the historical literature of the time will demonstrate that while there was an appreciation for the well to do, there was just as much for those of more humble origin that found their own way into the political limelight.
You seem to have your mind made up, so that's cool. You do you. However, if you're looking to get taken seriously by anyone who doesn't already agree with you, you may want to consider getting a better appreciation for the historical context of the time in question, and open yourself to the fact that societies evolve over time. Your protests that the Founders were Aristocrats from your privileged position here and now would be laughed at as grim humor or insanity in their time. They were traitors. Treasonous currs and usurpers to the loyalust. They were heroes, patriots, and paragons to the oppressed, and liberty starved of the time. The Dream and ambitious ideal they chased, of a Country of the Free, of, by, and for the People it served at the consent of; bound explicitly from assuming a place as Supreme Arbiter or Granter of Freedoms through the Constitutional foundation laid out in simple language, and left open ended for revision by those that came after. To them, better men and women than any of them could ever hope to be, and underpinned by their single greatest gesture against the established powers of the time: namely their Declaration that started it all.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,--That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
So if you're set in your ways, if you truly believe what they built is worthy of ridicule, scorn, and abandonment, know that you are walking in the very shoes they did all those years ago, and take care that you not repeat their mistakes, and that you put at least as much effort, forethought, and sacrifice into that which you're set on hewing from the corpulent mass of the society you seem to have come to despise.
On the other hand, if you're just looking to change things for the better, you're in good company; the trick is to beat the establishments it's own game.
https://clintonwhitehouse2.archives.gov/Initiatives/FastTrac...
https://en.wikipedia.org/wiki/Fast_track_(trade)
When was the last time the us congress actually declared war (their job)?
This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition. Furthermore, prohibiting ex-post-facto laws means you can't pass a law which criminalizes actions in the past. But courts don't pass laws, they interpret them. There's plenty of cases where courts interpret a law in a new way because of new situation. For example, I'm sure Clayton County is going to face applicable penalties under Title VII after Bostock v. Clayton County (recent LGBT discrimination ruling).
This is a common misconception. Courts don't pass statutes, but they certainly create law. Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court.
This is the essential difference between a common law and civil law system. There are still rulings in the US that cite old English cases from before 1776 as the basis of the law in this country.
While it's true that courts (in the US and similar systems) make law, this specific claim is an exaggeration, at least as regards the US. Full precedential weight generally only applies to published decisions, which are only about 1/3 of decisions of, for instance, the US Courts of Appeals.
That's not what I was talking about. Look at the example I used. The Supreme Court declared it was unconstitutional to forbid gay marriage, even though that was the common practice up to that time. So, now we've discovered all the people who were engaged in implementing the common practice were violating the constitution? What happens to them now.
The courts don't examine theoretical questions of legality. Every law that was declared unconstitutional was a law that was passed and enforced, usually in good faith.
> because there's no higher authority to appeal to for enforcement.
Then we do not live in a democracy with a rule of law. Why have the constitution at all?
Barring weasel lawyering and issues around standing. The very idea that you would claim these violations are not punishable means that they will continue to occur.
I am having a hard time fathoming how you take this stance at all.
The concept of checks and balances is an attempt to mitigate this problem. The "higher authority" is the other branches of government. But even that only goes so far.
Ultimately the entire scheme only works because individual humans agree to abide by the implicit social contract to live within the system of laws. To the extent that large number of people come to not feel bound by the social contract, well at some point you have some sort of haphazard and generally unjust system, insurrection, or even civil war.
I'm tempted to make some comments about recent events in the US, but suffice to say there are definitely some people who seem to think the current social contract isn't worth saving. And I'm not just talking about those taking action in the streets. There are plenty of people in elected positions of power who are behaving in that way also. It would be nice if those who feel like it isn't worth working within the system to improve things had any sort of an alternative. Unfortunately it is orders of magnitude easier to dismantle and destroy than it is to create and build. I hope we don't have to learn that lesson the hard way.
This doesn't seem reasonable to me. The amount of misery and injustice that would accompany any sort of dissolution of civil society would be enormous and with no path towards something better.
To the extent that some people who think the current system is broken beyond repair make an effort to explain what they would do different it basically amounts to "everything will be better if we just give all the power to my preferred group of people", which sounds a lot like fascism to me.
The expanding scope/power of national government (all branches) is a huge part of our problem. Accelerating that trend but with the "right people" in place is not an attractive solution from my point of view. It doesn't matter to me if the "right people" have a (D) or (R) after their name, expansive national government is a bad idea.
Civil society also doesn't have to be tied directly to government. America's biggest problems is that we are shedding norms faster than we acquiring them.
I had a conversation with a business ethics professor, and every one of her students for the most part want to work at Amazon and they have favorable opinions about Amazon's means and methods. Corn pone and all that. The lust for money has too large of an effect on our society.
> the Tree of Liberty Must Be Refreshed with the Blood of Patriots and Tyrants - Thomas Jefferson
It’s because the final authority is the people of the country. The constitution is the social contract the government and people agreed to. If broken, the people have the obligations to correct it. That’s not to say some kind of rebellion necessarily. We have the justice system, Congress, senate, etc. when all that fails... that’s why we have the first, second, fourth, etc amendments. It makes it hard to enforce your will all at once when the people have those protections. Each would have to be slowly taken away to effectively take control .
And yes, I would like to see, actually, qualified immunity removed and governments held liable for rights violations. Perhaps not prison time for the clerks - who were simply "following orders", as horrendous a saying as that is - but some liability and remedy for the countless people harmed.
How different a world would it be if as a result of Brown v. Board of Education was that black families were financially compensated for sixty years of segregation and for centuries before that denied the right to an education?
How different a world would it be if as a result of Shelley v. Kraemer, every black person who was told they couldn't buy a home because of a bank was compensated?
How different a world would it be if as a result of Whole Women's Health v. Hellerstedt, women who sought an abortion and were denied or unable due to unconstitutional restrictions on clinics were compensated by the equivalent of child support from the state?
I think that would be a better world. No, I don't think the clerks, the school boards, or health commission members in Texas should go to jail. But I do think that perhaps, just perhaps, we might live in a more just world today if there were long-term consequences for denying someone their rights. And maybe, just maybe, we can then start to ask whether or not "just following orders" is a good way to justify one's individual place in society.
But before we go down the slippery slope of questioning whether evil can be banal - it can - we should ask whether or not its prior victims should be entitled to a remedy too.
Maybe I'm just being cynical, but it was hard enough to get those rights recognized in the realm of argument, I imagine putting a giant pile of money on the other side would make it functionally impossible to change anything.
Putting financial penalties on admitting your mistakes doesn't usually make people more compassionate. If it did, the world of corporate law would be a utopia.
If a police department, a county clerk, or a school repeatedly violates someone's rights, I don't think it's fair to say "Well, we 'fixed' the problem for anyone who comes after those folks." For one thing, due to qualified immunity with police brutality the problem never actually goes away. No one is every held responsible. For another, when cases actually can go all the way up to a court of appeals or the United States Supreme Court, the remedy is usually "don't do that".
There's a pernicious form of cruelty that many of the same people politically aligned with denying people rights also believe that equality of opportunity, not equality of outcome, is the best way to organize society. Yet, when it's recognized that opportunities have been systemically denied and stolen from certain classes of people, those people offer no recompense.
We can and should change that. If we really, genuinely do believe in equality of opportunity then reparations for civil rights violations are necessary. We cannot have equality of opportunity when the playing field has been tilted by centuries of generational and institutional harms.
Yes, I get that. I'm not talking about individual liability, I'm talking about institutional budgets.
I'm saying that if acknowledging rights generally costs a large sum of money (in your hypothetical, in payments to people who have had their rights infringed upon) you will see less of it, as pressure gets put on legislators and judges to save money.
To take the recent example of gay marriage, I would expect the phrase "we can't let them marry, there's a budget crunch going on" to be used unironically.
I think that what you're advocating for would end up with less of what you seem to actually want (you seem to want people's rights to be respected).
You want a system where any judge or jury can decide that someone owes someone else a billion dollars based on past law? Until 4 years later when a judge or jury rules the other way and makes them pay it back?
To keep such reparations from being held up in courts or tossed back and forth, I think that upon finding a violation of constitutional rights has occurred, the Supreme Court can and should appoint a special master or appoint parties to determine the appropriate remedy for historical abuses.
When one state violates another's rights, usually water rights, cases of so-called original jurisdiction for the Supreme Court, they appoint such an individual to study the matter to the extent the court needs, being themselves not experts. The states can argue over the findings and sometimes the reparations are revisited on an annual or recurring basis. The finding may sometimes be that one state owes another "a billion dollars" based on past law.
I see no reason why classes of people shouldn't be afforded the same here. There exist mechanisms to provide long-term, well-informed and adversarially argued remedies. We should not throw our hands up in the air and argue that it's "too hard" when we can adopt such systems already in place.
Of course this money comes from somewhere: taxpayers. That seems appropriate, as the citizenry of the US should be held accountable for civil rights violations they allowed through poor choice in elected leaders. Yes, they might be several steps removed from the bad decision-making, but the buck has to stop somewhere.
Maybe not on some technicality, but the effect would be the same. Conduct that was reckoned to be legal (and in fact required by law) becomes retroactively illegal because of the new interpretation.
> How different a world would it be...
You'd have officials second guessing the law left and right, so it wouldn't be much of a law anymore. You can imagine situations where that might be good, but there are just as many (if not more) where that would be very bad.
You chose your examples, but there'd be others that may be less compelling to you: cities being forced to pay compensation because they tried to regulate gun ownership, retroactive holes in the budget because the individual mandate was declared unconstitutional. Those are just some thing I can think of off the top of my head. Is that how you want good faith efforts to solve problems treated?
I think this is a care where idealism and practicality are in a pretty severe conflict, and there have the be pretty strong limits on retroactivity.
Incorrect interpretation of the law is not what I am talking about, intentional violation is. The clerks that denied marriage licenses before the ruling did not violate the law and after the ruling yes, they did act on behalf of government (not that I am expressing my view on the matter). What happened was one clerk was jailed indefinitetly (human rights violation!) Until she complied instead of measured punishment and removal from office. Regarding the law makers, the law maker that introduced it should be punished if it can be proven he violated the bill of rights on purpose (intent).
You can't say the law is not clear enough to punish people. You're essentially saying the law is a guideline open to free interpretation. If I kill someone with a gun, is it murder? It depends right, even in such a simple scenario the law is not clear cut, that's why you have judges. A cop on duty can get away with a shooting if he feared for his life, in certain states you can proactively stand your ground and kill intruders. No matter what, judges interpret law and lack of clarity is fine.
The crime is violating constitutional law while acting on behalf of government. Intentional ignorance of the bill of rights or malicious violation of the same must be proven in court to find a person guilty.
Well.. you could depose them. Or declare independence from them. That has happened a few times in history.
The Constitution is a social contract. The people say "we'll give you (government) these abc powers, if you promise to use them this xyz way." When that contract is broken, no one gets thrown in jail - its rather more severe. The legitimacy of the government is called into question, or dissolved.
I was merely pointing out that the US's "government for the people by the people" was laughably not at all that back when it was founded. "The people" didn't give the government abc powers; a single-digit percentage of them did.
Beyond that, suggesting that an armed insurrection could ever be successful at deposing the US government... that's a silly fantasy.
My understanding is at the time it was written, it was expected that a government would be balanced by the potential military might of an armed rebellion should the government act so against the interests of the populace as to inspire that response (after all, starved and freezing American rebels had just beaten one of the mightiest empires in history, so they had set historical precedent).
I don't think the founders foresaw a future in which the government's military might so far surpassed the public's as to make such a rebellion unthinkable.
The only nonsense is that we haven't done exactly that. If someone in power betrays the public trust they should be punished. The punishment ought to be severe so there is no doubt about the stakes at play.
> That might actually be unconstitutional ex-post-facto punishment.
We have members of our government who have taken oaths to other nations, and that have then voted to provide those other nations with aid and support. Similarly, we have members of our government who provide legal sanctuary for those who defy the laws of the land. And, regardless of your political beliefs, both parties currently in power have voted overwhelmingly in favor of war over the past several decades.
> Article III, section 3 of the U.S. Constitution: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."
There are also groups who openly consider us their enemy and take action to harm the United States, even if we don't 'officially' recognize them. Some of these groups are nation-states, others are religious groups, and others and driven by [0]other ideologies.
In fact, even supporting the Soviet Union would not be treason. Enemies, in this context, is very narrowly defined as an entity the US has declared war against.
À senator helping a Martian terror state, as long as they did not engage in violence against the US, wouldn't be convicted of treason.
https://www.nbcnews.com/think/opinion/americans-have-forgott...
> Whoever, owing allegiance to the United States, levies war against them - or - adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
> Enemies, in this context, is very narrowly defined as an entity the US has declared war against.
There has been so few cases that this interpretation isn't well-tested. Regardless, based on cases that do exist, this doesn't seem to be true.
There are exceptions to what you're saying such as John Brown who was executed for treason for attempting (failing) to incite a slave revolt. Also, cases such as Fries Rebellion exist where war was never declared as far as I am able to ascertain, but the leader was convicted of treason. And then there's the case of Mary Surratt who was connected to the Lincoln assassination and executed for treason.
Economic warfare, whatever that means, against the US, is not illegal, and making it illegal is unconstitutional due to the strong protections for private property.
If you think people engaged in the above activities aren't engaged in a crime, then there's no point in carrying this discussion further.
> Economic warfare, whatever that means, against the US, is not illegal, and making it illegal is unconstitutional due to the strong protections for private property.
This is 100% incorrect, on every level. Taking intentional action to harm an economy is a direct threat on the security of a nation and would be an objectively justifiable Casus belli.
Yes that's exactly what you should do. That's not nonsense. That's how a non-corrupt state should work. At the very least the law itself should be nullified.
Although its giant double standard, despite knowledge of illegal acts frequently those higher in the chain of command aren't held responsible (aka, look up waterboarding).
We mostly don't unless we're looking for scapegoats.
> Metadata is not the content of the calls but the data that the users put out to the world.
So when I make a call to my private friends, that's "me putting data into the world"? And it is ok for everyone to read it because I did not write it on a paper and instead used the phone? That's how you treat the constitution's "persons, houses, papers, and effects"? Really?
This is not how most people would even think about their information. There is nothing vague about it.
>Trump says he is considering pardon for leaker Edward Snowden
https://www.reuters.com/article/us-usa-politics-snowden/trum...
discussion: https://news.ycombinator.com/item?id=24174265
Also: https://www.foxnews.com/politics/congressional-report-slams-...
https://www.newyorker.com/news/amy-davidson/edward-snowden-t...
https://phys.org/news/2016-07-wikileaks-nsa-leaker-edward-sn...
https://edition.cnn.com/2014/01/23/us/edward-snowden/index.h...
https://www.dallasnews.com/news/politics/2013/06/12/try-nsa-...
https://abcnews.go.com/Blotter/nsa-leaker-edward-snowden-fai...
https://www.france24.com/en/20140807-snowden-russia-nsa-resi...
https://www.newsweek.com/edward-snowden-latest-nsa-leaker-wo...
Check the dates. Most of them are from before Trump, and the last one is long before Trump floated the idea of pardoning Snowden.
Is pretty close, but requires that it be for reason of the person being a certain color, of a race, or an alien, and that the violation be of a nature otherwise unascribed to a citizen. You'd have to be exceedingly loose in interpretation to use it, or well within levels of niceness. However, the desired regulation you're looking for could be achieved with the deletion of the race/alien/color part.
You don't even have to ditch the as prescribed by law for a citizen piece because unconstitutional laws are deemed so from the moment of their enactment.
Constitution is an interpretable document. Depends how you read it, so it's not as simple as 'violating' the constitution, it ends up in the interpretation of a comma or something.
We already have federal criminal and civil law establishing penalties, damages, and other remedies for deprivation of rights under color of law, plus the Constitutional power of impeachment which is designed to serve that role for offenses against the Constitutional order of government that are not adequately remediable through traditional legal process.
Your problem seems really to be that laws are always enforced by humans and you don't like the way that the humans responsible for the existing enforcement mechanisms apply them. That's not something that is likely to be fixed particularly well by focussing on changing the law rather than focussing on changing who is entrusted with it's application.
They also withheld exculpatory evidence at the time of requesting the warrant, and relied on a fictional document paid for by the opposing political party.
This was used as a basis to conduct a 2 year long investigation into collusion between the campaign and the Russian government, which resulted in the conviction of Michael Cohen for tax evasion and perjury, and Paul Manafort for tax fraud, bank fraud and conspiracy all of which predated the campaign and had nothing to do with it.
Not only are these agencies spying based on fabricated evidence, they are using the spying to kick off independent investigations, each of which unveil various unrelated crimes, which they then prosecute.
The whole system is rotten to its core.
So basically the US needs to follow their strict laws to the T. But adversaries like Russia and China can play as dirty as they want.
Moralists will do well against communist dictatorships, I'm sure.
I have faith that the US can behave ethically AND stand strong against foreign powers. Moral authority can be a valuable form of soft power.
So not only did Snowden have a moral imperative to blow the whistle, but a legal one too.
So, a question of chicken and egg. What do you try to fix first, congress, or the laws/system? I think congress is the only practical avenue.
parallel construction is a hell of a thing
1) Only a 3 judge panel, so their will be an appeal for the full court to here the case.
2) Not yet over even if the full panel agrees, because then it will be appealed to the Supreme Court.
So it could still be years before the issue is finally
We need "prison" more often for misbehaving entities; that is, a prohibition on operating for the duration of the sentence.
"But what about all the people who will be unemployed?" Exactly, that's part of the incentive not to mess up.
"You can't shut down the NSA for a year, what about the commies and the terrorists?" Yes that would be bad, so make sure it won't happen. #Incentives
Nothing is too big to fail.
When a large section of a society dislikes certain thing, yes, it is possible to prosecute groups. When is this possible? Crimes against humanity is one such example. Or going after mafia or biker gangs. Otherwise, at some time or another, it is very easy to convict influential sections of a society. That's why judges, lawyers are not keen to press charges against an individual just because such an individual is part of some kind of collective responsibility.
If individuals also broke the law, then of course they should be punished accordingly.
The answer, as others have already said, is imprisonment of commanding officiers, supervisors, senators in charge of oversight committees, etc. Hold the people that make decisions accountable. Don't hold the entry-level engineers who had a family to feed accountable. Hold the people calling the shots accountable. 10 years in prison is a pretty good incentive for those in charge to make sure what they and their employees are doing is legal.
Separately, if a person breaks a law, they should be punished for that.
And remember, judgements incorporate circumstances and intentions when determining punishments. So a small non-profit that was trying its best but was still hacked by a nation-state would probably get a lighter punishment, just as accidental manslaughter usually receives a lighter sentence than pre-meditated murder.
And yes, that hurts the population a little bit, just as imprisoning individuals hurts civic society and the economy.
To mangle a great line: we are entitled to rise and sleep under the blanket of the very freedom the NSA provides AND question the manner in which they provide it.
https://www.theflyy.com/blog/how-appbrowzer-hit-1-lac-downlo...
[1] Trump has flipped the 9th Circuit https://www.latimes.com/california/story/2020-02-22/trump-co...
Make no mistake, this is just a way for the intelligence services to pretend as though there's some kind of legality and court oversight to what they are doing.
Lol jk.
They could even frame Iran or North Korea in the process. Bonus points for the Military Industrial Complex.
I’m fine with record collection if it works. The secret courts enabling these secret agencies only help hide bad actors and must be abolished.
However, the unanimous three-judge panel of the 9th Circuit Court of Appeals said the role the so-called telephone metadata program played in a criminal terror-fundraising case against four Somali immigrants was so minor that it did not undermine their convictions. https://www.bloggerzune.com/2020/06/10-Most-Important-SEO-St...
I'd rather have that, and allow us to stay protected against terrorists or spies from China/Russia... than play by some arbitrary rules and then get destroyed one day.
That's not what it's being used for. It's a flagrant violation of the 4th amendment. Whatever remains of it today, anyway. You don't get to do what amounts to a search without a court order with US citizens.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
... and to petition the government for a redress of grievances.
This document matters. It’s a fucking miracle it even exists — still.
Question for everyone: in October 2016 the head of the NSA did an audit on unaskings. What percentage do you think were illegal?
> One paragraph in the report states that ??% of the Section 704 and 705(b) FISA searches made during this time were non-compliant with applicable laws and therefore criminal.
Take a guess before you click this [2] link and find out.
I challenge you to even find a mainstream news article about this. It's extremely hard, by design. Let's put aside politics and hold the intelligence agencies accountable.
1. https://justthenews.com/accountability/russia-and-ukraine-sc... 2. https://www.usapoliticstoday.org/fisa-court-ruling-85-obamas...
Lol.