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Comment by aspenmayer | Hacker News Reader

I wonder if this may be related to FDR serving four terms as President. If he hadn’t died in office, and had term limits not been implemented in 1951, he may have had even more terms than that.

https://en.wikipedia.org/wiki/Franklin_D._Roosevelt

https://en.wikipedia.org/wiki/Twenty-second_Amendment_to_the...

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My understanding is that the "flaw" was that it allows itself to be modified via the amendment process. Given his connection to self-referential problems, this makes sense.

Ironically the real problem with the U.S. constitution is that it’s much too hard to modify. The text is arcane and vague and often meaningless in a modern context, so courts can make up any interpretation they prefer.

Does the constitution contain a right to privacy that allows abortion? It did for 50 years, then it suddenly didn’t. What’s a “well-regulated militia”? Anything that a particular court wants it to be. What about “emoluments”? Same.

Instead of trying to squeeze new meaning out of 18th century vocabulary, a constitution should rather have a self-destruct clause. Rewrite it completely every fifty years or so. There are nations that do this kind of constitutional reset when times are good (e.g. Finland whose latest constitution is from 2000), and they seem stronger for it.

Of course this is not possible in America also because culturally the constitution is much closer to scripture than to ordinary law. The Puritan heritage is in plain sight in how a legal text is treated like Moses had brought it down from the mountain.

"There are nations that do this kind of constitutional reset when times are good (e.g. Finland whose latest constitution is from 2000), and they seem stronger for it."

Don't nations do it when times are good for the current regime, often to get rid of term limits?

Mr. Trump helpfully pointed out another flaw: a president can pardon whoever they want, including themselves. So it's apparently legal for Mr. Biden to send a team to assassinate all his political rivals and then just pardon them.

Legal thinking these days is that self-pardons are meaningless, but the fact remains that the party will march so much in lockstep that there are no consequences anyway.

Nixon apparently considered pardoning himself:

The Pardon of President Nixon: Annotated

https://daily.jstor.org/the-pardon-of-president-nixon-annota...

> Nixon had considered pardoning himself while in office[0], and sought a legal opinion considering the constitutionality of doing so (his lawyers believed that it was constitutional). However, three days before his resignation, the Justice Department issued its own opinion to the contrary: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”[1]

[0] Pardon Me?: The Constitutional Case against Presidential Self-Pardons

https://www.jstor.org/stable/797310

[1] https://www.justice.gov/sites/default/files/olc/opinions/197...

In the context of Trump:

Explaining the presidential self-pardon debate

https://constitutioncenter.org/blog/explaining-the-president...

> On Monday, June 4, 2018, President Donald Trump said on Twitter that, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”[2] His comments echoed those made by Rudy Giuliani, his attorney, on Sunday.

> Here is a brief explanation of the President’s clemency powers, some past cases, and a theoretical look at a Nixon-era question: Can a President pardon himself or herself?

[2] https://twitter.com/realDonaldTrump/status/10036162109221478...

Not so according to the Justice Department.

https://www.justice.gov/sites/default/files/olc/opinions/197...

I elaborate on this in a reply to your interlocutor downthread:

https://news.ycombinator.com/item?id=40383391

That doesn't really change much. The president can kill the members of the opposing party, and then just pardon the assassins. Who's then going to sue him?

Nation state level threats are kind of a final boss irl and in the cybersecurity realm, so I’m not sure what you want me to say. That’s a problem for Citizen Lab, Google Project Zero, and natsec but if someone individually is at risk of this happening, they need a lawyer and an insurance policy, and possibly private security, but tbh they have bigger problems like being on a naughty list. I honestly don’t think this something you can expect to move the needle on for the >99% of people who don’t have this problem.

What do you think a defense against this would even look like? To attempt to do so sounds almost absurd because it’s just such a remote possibility.

> What do you think a defense against this would even look like? To attempt to do so sounds almost absurd because it’s just such a remote possibility.

Stronger constitutional limits. For example, pardons should not be a thing that could be done unilaterally. Ideally, they shouldn't be a thing at all.

At the same time, the Constitution needs to be a bit more malleable. The Amendment process is notoriously hard, and the US Senate structure is uniquely unamendable.

What Gödel was talking about is apparent when you look at the style of logical contradiction he is known for. The US Constitution and its Bill of Rights only define rights in terms of narrowly specific negative prohibitions on what the nominal government can do, rather than positive statements of what the People should be able to do. This leaves the door open for extraconstitutional de facto government to exist along side the nominal government - not explicitly authorized by the Constitution, but also not prohibited or constrained by it. We see the resulting shape basically everywhere today, whereby most of the rights laid out in the Bill of Rights have been effectively neutered whether by the government sidestepping the Constitution's specific proscriptions, corporations exercising coercive power based on market share, or the potent combination of both.

Interesting take. Libertarians, who are usually the ones most preoccupied with finding tyranny in any government action (or any government at all), tend to be big fans of negative rights as opposed to positive rights. But that's probably because they're coming from a different ideological outlook.

Libertarians are not known for their strong logical arguments.

Yes, "it's just another system of control". I used to partial to big-L Libertarianism. I'm not any more, mostly due to this flaw in the framing and the resulting conclusions. It essentially blesses corporations' extraconstitutional governing, by simply defining away the coercion (plus a healthy dose of ignoring that a "corporation" is itself a government creation). Then offers up individualist fundamentalism to cope with its glaring failings.

(These days I identify as small-l "libertarian" because I still believe individual freedom is paramount. And it still puts me in the appropriate "other-weird" bucket with most people, rather than their friendly-kool-aid or other-enemy buckets).

I think that might fit into left-libertarianism and/or individualist libertarianism, perhaps.

Oh! I get it (I think)

Corporations can be set up that do most of the governing, and do it the way “they” want. I assume Facebook is the poster boy here, something something Content moderation.

I mean yes - kind of.

My take is that most corporations are more interested in making a quick buck than in doing any governing (especially the hard stuff).

Governing well is really really hard ( which is why it is so rare!). Outsourcing it even to your captured corporations just makes the whole thing harder surely?

I am heartened by Zuckerberg standing up in congress and saying “well you tell me what is and is not allowed”

Corporations either don’t want to govern (see above) or they already are the government (see Putin’s Russia) so it’s only extra constitutional if you think the constitution is worth more than the ink.

I think despite everything we have shared belief that our western constitutions matter - even Zuckerberg

I avoided concrete examples because they tend to bring people out of the woodwork who see the goals of that specific exercise of power as a good thing, and then argue against the general criticism.

I'd say that pigeonholing corporations as only interested in a "quick buck" is a fallacy. You're essentially focusing on one of their imperatives to write off concerns about another. From what I see corporations very much have an imperative to govern - in the small sense of controlling others, beyond what would otherwise be a disinterested smallest transactional scope.

To run with your example, Facebook does not merely present a disinterested linear feed of posts, allow for users setting their own prioritization criteria, nor design their systems to be content-oblivious conduits. Rather Facebook inserts itself into users' relationships in ways that "drive engagement", and proactively polices users' content - either preemptively and summarily enforcing what Facebook perceives as the law, and even differing from the law for internal ideological or public relations purposes. That's essentially small scale governance, with the ability to opt out being directly tied to one's dependence on Facebook. If you're just using it to keep in touch with family, you can do that in other ways. If it's a critical part of promoting your local business, running afoul of its regulations is likely more of a critical problem than say failing a health department inspection.

> a "corporation" is itself a government creation

Not necessarily. Today corporations are required to be created and maintained according to government procedures, but that wasn't always the case.

To a small-l libertarian, a "corporation" is simply an obvious way for a group of people with a common goal to simplify the process of working towards that goal while interacting with the rest of the world, by creating a single virtual entity that can do things like be a party to contracts, participate in trades, etc., rather than requiring every single person working towards the goal to individually be a party to each such interaction.

Of course, to a small-l libertarian, such corporations are not empowered to do anything their individual members could not do, and they don't change the limitations of the non-aggression principle. Which already leaves out much that actual corporations do in today's world.

My characterization is primarily referring to the liability shield aspect, which is a creation of government policy. If the owners of a corporation were jointly and severely liable for the actions and debts of the corporation, I'd accept the explanation that it's just a way for people to come together to achieve a common goal. But that liability shield allows for a level of scaled-up investor non-involvement that creates significant qualitative differences in the resulting behavior.

The liability shield isn't necessarily a government creation either. 90% of it can be defined by contract law, it's only when interfacing with third parties not in contract with the corporation that it comes up, but that tends to be a minority of corporate litigation.

That's assuming some unlimited ability to unilaterally push written contracts, and with those types of terms. If businesses were able to do that, we would expect it to be prevalent for the liability they do have today. Businesses are certainly trying with things like mandatory arbitration, but it would seem like a tall order in general. Especially as it's dubious whether something like a clickwrap EULA should even actually be considered a contract (due to lack of meeting of minds), or whether that current state of affairs is more appropriately viewed as corruption.

That's not true at all. The Constitution only enumerates certain powers to the federal government, and quite clearly states that the government only has those powers. The Constitution has since been "interpreted" to mean that the government can do whatever it wants if it thinks it has a really good reason e.g. "the bill of rights is not a suicide pact", but that's not really a flaw with the text of the Constitution.

This only applies to the part of my argument/example about the nominal government overstepping, while not addressing the larger phenomenon of parallel governance structures being created independently of the nominal government.

Ok, but the Constitution doesn't authorize such a parallel government, and it's hard to see what any constitution could do to prevent one. Really, the only way constitutional government can have any chance of working is if a pretty fair percentage of people in power actual care about constitutional government for its own sake. Otherwise they'll just do as seems expedient.

The Constitution fails to prohibit parallel government. Obviously, doing so could not prevent wholesale replacement of the Constitution and US government, but it would prevent the current situation where we've got parallel extraconstitutional government while the Constitution is still in legal force and supposed to be defining our rights.

Parallel governance could be prohibited through a positive definition of rights applying to any actor that might infringe (similar to say, the prohibitions regarding homicide). This would allow for a straightforward balancing of equity between conflicting rights, rather than the current "axiomatic" approach where any given right tends to be found to apply fully or not at all.

If the intent of the Constitution was to enumerate the rights granted by the citizens to its government and keep those limited, then there should have been a bit more careful wording in "provide for the common Defence and general Welfare of the United States" since that can be interpreted to mean just about anything...

They were more careful. "provide for the common Defence and general Welfare of the United States" is a justification for the enumerated powers. The enumerated powers were much more specific like

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

The so-called "elastic clause" is the one that reads "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers". Which can indeed be read fairly expansively, particularly if you ignore the clear and explicit intent to keep government power circumscribed. But there isn't anything anywhere near as ridiculous as a power to promote the general welfare as such.

I mentioned FDR due to his being President at the time of Gödel’s interview. Perhaps he was aware of the possibilities of government overreach, Constitution or Amendments be dammed, such as the internment of American citizens and others in camps during World War 2, though they were neither suspected nor guilty of any crime. Many of them weren’t even ethnically or racially Japanese, which is eerily similar to German atrocities committed during the war.

Many folks today aren’t aware that actions of the US government in its treatment of migrant workers, Native Americans and others who were US citizens under the Bracero program, including detainment, torture, and even usage of Zyklon B itself were all known to German authorities and intentionally replicated in German treatment of Jews and other groups deemed undesirable during the war. The racism, discrimination, and xenophobia of America was pointed at and acknowledged by Germany, and Germans sought to emulate it.

https://en.wikipedia.org/wiki/Bracero_Program

https://en.wikipedia.org/wiki/1917_Bath_riots

https://en.wikipedia.org/wiki/Internment_of_Japanese_America...

The Nazis modeled their laws on Jim Crow, that’s well-known. What’s this about nerve gas tho?

> But I also unexpectedly uncovered other information at the National Archives that took my great-aunt's personal recollections beyond family lore or microhistory. These records point to the connection between the U.S. Customs disinfection facilities in El Paso-Juárez in the 20s and the Desinfektionskammern (disinfection chambers) in Nazi Germany. The documents show that beginning in the 1920s, U.S. officials at the Santa Fe Bridge deloused and sprayed the clothes of Mexicans crossing into the U.S. with Zyklon B. The fumigation was carried out in an area of the building that American officials called, ominously enough, "the gas chambers." I discovered an article written in a German scientific journal written in 1938, which specifically praised the El Paso method of fumigating Mexican immigrants with Zyklon B. At the start of WWII, the Nazis adopted Zyklon B as a fumigation agent at German border crossings and concentration camps. Later, when the Final Solution was put into effect, the Germans found more sinister uses for this extremely lethal pesticide. They used Zyklon B pellets in their own gas chambers not just to kill lice but to exterminate millions of human beings. But that's another story.

Excerpts: 'Ringside Seat to a Revolution'

From Ringside Seat to a Revolution, An Underground Cultural History of El Paso and Juarez: 1893-1923 by David Dorado Romo. Published 2005 by Cinco Puntos Press.

https://www.npr.org/5176017

Ok, “treated clothes with a deadly pesticide” is really quite different than “gassed migrants”. I mean, we were still burning leaded gas then.

It’s a matter of degree, not kind. I don’t think you could argue it’s a horse of a different color. That migrants literally rioted speaks to the depravity of the conditions.

That we inadvertently and indirectly influenced and inspired certain Germans to build their own kind of literal gas chambers modeled on those of the United States is not a matter of debate, is my point. That they took it “too far” is not our fault today, but it is all our shared legacy and responsibility to not dare repeat or enable.

I’ll go with “depraved indifference” rather than “genocidal intent” but when you spread it across a whole society, they ain’t all that different, are they?

I don’t disagree, and I’m not trying to paint all Americans or all Germans with the same brush. The migrants were here legally, and they deserved due process and protections of the Constitution, even as noncitizens, especially their rights to “life, liberty, and pursuit of happiness,” which could be interpreted as freedom from undue interference in their way of life and livelihood as legal migrant workers. That’s not to say that they weren’t subject to immigration/border controls, but the system as such was only just becoming formalized when these events occurred. Historically, the southern US/Mexico border was open and not really regulated much at all just years before these events transpired.

The events of World War 2 undertaken by Germany and other countries, individuals, and groups directly influenced the creation of the United Nations, leading to the drafting, approval, and adoption of the Universal Declaration of Human Rights in 1948, and the later International Bill of Human Rights in 1976. It’s thanks to the United Nations also we have a formal definition of what constitutes genocide.

We’ve come a long way, and have farther still to go, but “we shall overcome because the arc of the moral universe is long but it bends toward justice,” Martin Luther King, Jr. said, paraphrasing Theodore Parker. Yet we must also remember the words of John Stuart Mill, often paraphrased and misattributed to Edmund Burke:

“Bad men need nothing more to compass their ends, than that good men should look on and do nothing.”

That's not really the problem. Yes, FDR broke the tradition, but he was the one exception who broke the rule, and there were plenty of mechanics to prevent him from retaining office if the electorate truly didn't want him.

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