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Comment by javert | Hacker News Reader

My mother can't travel by plane, because she has aphasia (can't speak) and a leg brace, due to her stroke.

If I go through the airport with her, there is no guarantee the agents will let me stay with her and explain the situation. She can't remove the leg brace on her own for them to make sure it's not a weapon, and TSA agents can't do it properly.

So, basically, taking her to the airport is a recipe for having her verbally abused (treated like a mentally handicapped or non-cooperative person), and then physically abused (TSA agents going under her clothes to determine that she's just wearing a leg brace).

Maybe there's some special procedure for dealing with this, but it's easier to just not travel than risk it.

The TSA is a direct, overt violation of the 4th amendment (search and seizure). Thus, the US federal government is not legitimate under the US Constitution. (No, I am not advocating rebellion, violent or otherwise.)

If we simply let the airlines handle their own security, which is not a violation of the 4th amendment, none of this would be an issue. Moreover, it would make air travel and security screening a voluntary relationship between consenting parties (travellers and airlines), instead of a coercive relationship between two consenting parties and government agents.

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> If I go through the airport with her, there is no guarantee the agents will let me stay with her and explain the situation.

I am - without being an expert - pretty sure there is a procedure for care givers.

The last time I flew - 2010 - it was a few months after my wife had bi-lateral knee surgery. She was mobile, but not spry, not able to walk more than fifty yards at a go.

We had an airport provided wheel chair, a guy or gal to push. My role was care-giver and I got to be with her throughout the procedure. 'Is this your care giver - step this way, Sir.'.

Worked pretty well: the pusher person knew where to go, the TSA goons got us to the head of the line and it worked out.

I don't know about the leg brace, though. That might be a problem.

I'm with you on the TSA being bad news and a worse idea. The day it was announced I knew it would be a goat rope, a hit against the 4th amendment and would never, ever, go away.

But I am old enough to remember when airports had observation decks for the public, anyone could march down to the gate with only a nod to the sleepy airport guy running the scanner, and if you'd told anyone what's going on in 2013 they'd snort and say

'Maybe in the USSR, it's run by commies. But never in the USA.'

> I am - without being an expert - pretty sure there is a procedure for care givers.

I think half of the problem is the plethora of examples where the TSA does not even follow their own procedures, making this moot.

> No, I am not advocating rebellion, violent or otherwise.

Freedom and rights have never been offered on a platter. You have to fight for them. And you have to keep fighting to maintain them.

And Americans complain about nationalized industries in other countries.

Which is fine, as long as a given _individual_ is consistent.

For example, I complain about non-retaliatory coercion wherever I see it, including nationalized industries in other countries, the TSA, and US government-granted monopolies to telecom companies.

America is an _extremely_ diverse place, and generic online American-bashing just isn't appropriate (despite being quite popular), so please try to avoid it.

I believe that there are governmental-media tendencies that create institutional criticisms rooted in hypocrisy. See also: stereotyping and bigotry, and as an example I would say the US's unified message that nationalizing oil in Venezuela was bad is an example of this kind of bigotry.

I'm also a lifelong Californian, so follow your own advice regarding diversity when condescending that my criticism necessarily depends on regional ignorance or outsiderism.

Can she not carry a written note (perhaps signed by a doctor) to hand to the TSA agent explaining her situation?

That would be a start, but there's no _guarantee_ that they will abide by the note.

Besides sometimes being coarse and unhelpful, there are _many_ documented incidences of abuse on the part of the TSA. I would not feel comfortable with the TSA even taking her out of my sight, because if anything abusive happened, she would not be able to communicate that, due to the aphasia.

It's surprising that people can be so nasty, but while a lot of the TSA people are decent folks that think they're doing something patriotic, some of them are bottom-of-the-barrel scum who would not be employable anywhere else. And some of them get off on having unchecked power.

There might actually be some kind of procedure to go with a person as a caretaker and be allowed to _stay_ with them, that I'm just unaware of.

The TSA is a direct, overt violation of the 4th amendment (search and seizure). Thus, the US federal government is not legitimate under the US Constitution.

Don't be so fucking stupid. Apart from the obvious argument that flying is a privilege and not a right, and that you don't need to fly (however impractical this is), even if you were right on the 4th amendment argument it doesn't mean 'the US federal government is not legitimate.' That's just magical thinking. Please, do yourself a favor and read up on the concept of severability. I'm sorry to be so blunt but when you make absurd claims like that then you just chuck your entire argument into the toilet and pointlessly marginalize yourself.

Now what would be worth exploring is a constitutional challenge to the TSA under the equal protection clause because of your mother's disability. But declaring the entire government illegitimate? Don't you think that with so many lawyers in the US and almost 12 years since the TSA was created, if your idea held any water that it would have been the subject of a major legal battle by now?

Here we go again, another "flying is a privilege" argument.

Flying is a right: " A citizen of the United States has a public right of transit through the navigable airspace." From http://www.law.cornell.edu/uscode/text/49/40103

I choose to exercise that right by hiring air travel with an airline.

Airspace is a public resource that belongs to everyone.

I think you are confusing the right to public transit with the right to transit with any commercial carrier through any engagement of your choosing...

Which is unfortunate, because I agree with your point but I don't think the law backs you up here.

So, I have a right to fly, and American Airlines has a right to fly, but the two of together lose that right?

Transit through navigable airspace is a right. Is transit with any cargo I choose a right? If it is, why doesn't that mean I have a right to fly with a concealed weapon?

That settles it, then: "the US federal government is not legitimate under the US Constitution."

Keep reading.

Weren't you claiming earlier:

"I'm offering you a communication channel to studio executives right now." https://news.ycombinator.com/item?id=5458900

And you say stuff like you do not have a right to fly?

Too bad there's no way to have HN not show me any of your replies (without scripting).

I fail to see what my professional and personal friendship with people in the movie industry has to do with my opinions on the legalities of flying.

Too bad there's no way to have HN not show me any of your replies (without scripting).

Well, you could put a paper bag over your head when you see one coming.

Your comment history suggests that you are a crusader: willing to take great risks defending those whom you identify with, but uninterested in defending a disabled mute's right to participate in our modern society. Your arguments, however well constructed, are built on a self-serving foundation.

On the contrary, I said what I think would be an effective challenge to the TSA above. Shooting yourself in the foot (argumentatively, by unilaterally declaring the entire government to be illegitimate on spurious grounds) and then hopping about saying 'look what you made me do!' is not an effective way of changing things.

What the hell does this even mean? What's wrong with you? In what parallel universe is it civil for you to take a disagreement about the law with someone you don't know on a message board and parlay it into a claim that they don't care about "disabled mute's rights to participate in our society"?

> I fail to see what my professional and personal friendship with people in the movie industry has to do with my opinions on the legalities of flying.

Both of these advocate taking away rights from the citizens, the rights for which we have paid a heave price.

No they don't.

Yes they do.

Calling someone you disagree with "fucking stupid" strongly suggests an argument based on empty emotion, not reasoning.

"Privilege" is a false concept in any political discussion. Privileges are granted by the owner of the privilege. But the government does not own my life, nor any aspect thereof, nor any aspect of anybody else's life, including their property. We are not owned by the government. To hold otherwise is fundamentally anti-freedom and pro-authoritarian.

So to reduce that to this particular case: The government does not own airlines, airplanes, airspace, or myself. And even though it does own airports, _we_ (the people) paid for that. So, flying is not a privilege.

Privilege is not a false concept just because you don't like it. Whether or not you agree with the policy, you can't just ignore the existence of Supreme Court jurisprudence because the SC is the arbiter of these questions per the Constitution itself.

And as for reason, I directed you to the concept of severability. Your claim that a constitutional violation invalidates the entire existence of government is just not anchored in reality. Lots of laws have been overturned as unconstitional, as have many actions by individual law enforcement officers or officers of the government over the ~230 year history of the United States. Has any of the Supreme Court decisions ever resulted in a dissolution of the government? No. Why? Because an infringement of the a constitutional right does not delegitimize the existence of the government. The point of a constitutional republic is to be self-perpetuating and self-correcting, not to fall apart like a game of Jenga when you pull on the right piece.

Please, read the whole constitution. It's not very long, you can do it in an hour or so. There's a lot more to it than just the bill of rights.I stand by my original argument that your approach to this is an example of magical thinking, and is actually getting in the way of the change you seek.

> Privilege is not a false concept just because you don't like it.

I didn't say it was a false concept _in general_. For a kid to get an allowance is a privilege. What I should implied (and should have have said explicitly) is: the relationship between people and their government should not be governed by a notion of privilege.

> Whether or not you agree with the policy, you can't just ignore the existence of Supreme Court jurisprudence because the SC is the arbiter of these questions per the Constitution itself.

No, morality is the arbiter of these questions, and the government either acts in line with morality, or it does not. In this particular case, the Constitution has taken the right moral stand, and the rest of the government has ignored the Constitution.

> Your claim that a constitutional violation invalidates the entire existence of government is just not anchored in reality.

I don't know why you keep talking about this. I explicitly stated that I don't support rebellion. I think we should try to work within the legal framework we have to change things. So we have no practical disagreement. I just think that a government that does not follow the rules of the Constitution is not a _legal_ US government, because it's acting _illegally_, in the same way that China taking over the US by force would not be legal under the US constitution, and would also therefore be illegitimate.

This is not the same thing as severability. Severability comes into play when part of a law is deemed illegal. In this case, the law (constitution) is illegal, and one of the parties to the law is breaking it.

> Please, read the whole constitution

Your presumption that I haven't read it is ridiculous.

That's literally nonsense. Morality is an abstraction of what constitutes proper behavior. An arbiter is a particular body that judges disputes. In the United States, that judicial power is vested in the Supreme Court, per article III of the Constitution. Your concept of the Constitution as a moral agent, ignored by the rest of the government (including the Supreme Court) is just irrational.

I just think that a government that does not follow the rules of the Constitution is not a _legal_ US government, because it's acting _illegally_

Would you say that a person who breaks the law is not a legal person, or that a citizen who breaks the law ceases to be citizen? Nobody subscribes to this concept of legitimacy; the Constitution explicitly contemplates the possibility of disputes between the United States and other parties, and the possibility of being a party to a dispute necessarily involves the possibility that the United States will lose such a dispute by being out of step with the Constitution. That doesn't make the entire government illegitimate.

Your presumption that I haven't read it is ridiculous.

If you have read it you have certainly not understood it. Your arguments border upon the delusional.

I'm not saying that to insult you. I'm saying that because you're making these bizarre claims out of the air, whereas I'm citing to the Constitution's own text. Unlike the concept of privilege, there's no mention of 'morality' anywhere in the constitution, and you're using the term in a way that is not consistent with normal English usage.

> That's literally nonsense. Morality is an abstraction of what constitutes proper behavior. An arbiter is a particular body that judges disputes. In the United States, that judicial power is vested in the Supreme Court, per article III of the Constitution. Your concept of the Constitution as a moral agent, ignored by the rest of the government (including the Supreme Court) is just irrational.

In this paragraph, you called my position "nonsense" and "irrational," yet you gave no reason for those claims whatsoever. I agree with the other stuff you said, modulo I'm not sure how you define "moral agent."

The point is, morality DOES exist, irrespective of what any person or government does or says. This is the normal English use of "morality." Government action can either be in line with that, or contradict it. I'm not saying that the Constitution is the source or morality or an arbiter of morality. It's just that the 4th amendment _is_ in accordance with morality, along with the rest of the Constitution, broadly speaking.

> That doesn't make the entire government illegitimate.

So, what's the line? Clearly if the government didn't respect articles I, II, and III of the constitution whatsoever, and just appointed a dictator, it would not be legitimate. On the other hand, if it makes a minor (but illegal) clerical error, it is clearly still legitimate.

_My_ answer to this is that there is no set threshold; it's just a strategic question, a matter of rhetoric. So I don't think there is anything weighing on this topic. What do you think the threshold is?

> If you have read it you have certainly not understood it. Your arguments border upon the delusional.

That's just ridiculous. You keep saying this, but you haven't made a convincing argument that I'm wrong about anything, much less _delusional_, which is an entirely different beast altogether.

I'm not sure if you understand that there is a potential difference between what is right and wrong, and what is actually written into law.

In this paragraph, you called my position "nonsense" and "irrational," yet you gave no reason for those claims whatsoever.

Javert, my reasons are given in the third and fourth sentences, where I define the term 'arbiter' and then observe that the constitution assigns the judicial power of the country to the Supreme Court. You have denied that the SC is the arbiter of constitutional questions on things like rights and privileges. I find your position nonsensical and irrational because it is in conflict with the plain language of the Constitution and with the fact that the Supreme Court has been functioning in this role ever since the its inception.

When you talk about the legitimacy of the government, you're making a legal assertion. You are certainly entitled to your own opinion of what you consider to be moral, but when you make legal assertions on the basis of your personal moral code in complete disregard of how the governance of the US is constitutionally organized, then I view those assertions as fundamentally flawed. DannyBee has cited specific case law elsewhere in the thread that shows the error in your position.

If you are simply going to dismiss anything you disagree with as being morally deficient that's up to you, but your moral opinions are wholly subjective. The objective reality here is what the judicial branch holds to be the meaning of the constitution, regardless of how your or I feel about the morality or quality or their jurisprudence.

I have nothing further to say on this topic, and I think you know perfectly well what I meant in the first place.

I understand your point in the first paragraph, now.

There is legal, and there is moral. The SC is the final, ultimate arbiter of _legality_, not morality.

This isn't a conflict with the Constitution, it's just a "meta-Constitutional" issue.

You act like this is a bizarre notion, but it's actually the common-sense one. First, nobody holds the Constitution as a moral document, only as a legal one. Second, the founding fathers clearly articulated (and demonstrated) that when a government becomes tyrannical, it can and should be overthrown.

Now, putting all that aside, there is a separate issue, which is that the government doesn't follow the 4th amendment. Thus, it is acting both illegally _and_ immorally. Though I see that you would probably say it's legal if the SC rules it OK. I guess it would be "legal" to enslave people, if the SC ruled it to be OK under the constitution? I mean, can the SC just make _anything_ legal by "interpreting" the constitution _however_ it wants to? (Rhetorical question, not asking for a response.)

> your moral opinions are wholly subjective.

No, they're objective, but I don't expect that to sound reasonable to a non-philosopher (or even most philosophers).

> I think you know perfectly well what I meant in the first place.

I resent the implication that I'm just arguing for the sake of argument, which simply isn't the case.

> I have nothing further to say on this topic

I respect your wish to close the conversation, and I feel the same way.

I think you pulled "the government doesn't follow the 4th Amendment" out of the air.

The First Amendment is written in remarkably clear language. "Congress shall make no law". Every court that has confronted the First Amendment has pointed out that there's very little wiggle room in it. And yet there is room to maneuver in the First Amendment. You can't yell "fire" in a crowded movie theater; you can't stand outside a small-town prison and encourage a mob to lynch one of its inmates. This goes beyond "speech plus action"; there are messages that are unprotected by the First Amendment.†

Now look again at the Fourth Amendment. What does the word "unreasonable" mean? Do you think the Framers just slipped up and wrote one of the most important amendments in the Bill of Rights sloppily? Or do you, like every Supreme Court since the ratification of the Constitution, think that the Fourth Amendment is designed to balance the needs of the state against those of the people, and that's why they put a wildcard like "reasonable" in the text?

TSA searches are lawful under the "Administrative Search" doctrine. Searches can be allowed as "administrative" when they are (a) not targeted to specific classes of people, (b) avoidable --- as in, nobody is coming to your house or stopping your car on the road to search you, and (c) balanced against a legitimate need of the state (in this case, the safety of commercial airliners).

I think the TSA is patently ridiculous and they piss me off just as much as they piss you off. But they are not unconstitutional. The Constitution allows plenty of room for Congress to make dumb decisions, and this was one of them.

† Libel, fighting words, incitement among them.

What constitutes "unreasonable"? IANAL, but presumably, it would be doing something without having a good reason to do it, which is what's happening here. (Looking back, this looks sarcastic, but I didn't mean that sarcastically.)

Under your way of looking about it, that whole amendment is completely worthless, because "reasonable" is anything.

> balance the needs of the state against those of the people

There is no such thing as a "need of the state" that is opposed to "needs of the people." They're one in the same. I'm not claiming this is obvious, but I'm claiming that it's true. (BTW, there are no "needs of the people" apart from "needs of specific, individual people.")

Tangentially, your example of "avoidable" administrative searches actually is self-defeating. Air travel and road travel are completely analogous in every relevant way. So, the laws of the country are inconsistent.

Specifically, if commercial air travel is avoidable ("Hey, just drive from North Carolina to California,") then so is car travel ("Hey, just walk to work every day").

I mean, hell, why don't we just "avoid" going out of the house each morning?

The lawyers SHOULD go, "Hey, we can't stop cars on the roads without a reasonable cause, so we can't stop all air passengers, either." Of course, instead they'll just go, "Hey, now we can use the TSA to screen cars, too!" Talk about the erosion of rights.

The entire definition of "unreasonable" can be distilled to balancing, for any given circumstance, the privacy interests of the searched against the state's interests. Similarly, it's not productive to litigate whether the state properly has interests. This one, based on a couple hundred years jurisprudence, does: the state's interests include law enforcement, national security, and the safety of its citizens.

You could then easily come up with a scenario in which a roadside search was lawful. For instance, SCOTUS has found some roadside sobriety checkpoints to be lawful (I am perhaps even angrier about sobriety checkpoints than I am about the TSA!)

These aren't controversial points and they aren't points I made up.

I feel like I have to keep saying this in every comment: there are more ways for laws to be wrong than "unconstitutional". I think the TSA is a farce and that it's offensive to core American values. But it's a farce that Congress was within its rights to create.

Your conception of the Constitution's place in moral arguments is unfounded. The Constitution largely avoids moral concerns --- or, more precisely, values and substantive rights.

What the Constitution cares about are the "constitutive" issues: the procedural rights that ensure that all citizens have access to the political process and to the same dispute resolution mechanisms, and that attempt to ensure (as best any constitution can) that the majority cannot impinge on the minority without sharing in the downside of those actions.

As you know, the ultimate arbiter of Constitutional rights is the Supreme Court. The Supreme Court is 9 unelected humans with lifetime tenure. We are not a nation governed by philosopher kings.

The Constitution is not just not a source for our morality and values; it is deliberately designed to avoid those questions. The framers and every court since Marshall's recognized that the legislative branch was uniquely positioned to represent the largest number of people and equipped with the best fact-finding capabilities. So it falls to Congress to judge the morality and value of the country. SCOTUS is there as a "ref", to make sure the routinely terrible decisions of any collection of West African Plains Apes don't violate the integrity of the Constitution's process --- and that's (mostly) all they do.

Highly recommended: _Democracy and Distrust_, John Hart Ely.

I agree with most of what you said, and I think you are misunderstanding what I said because the context got complicated. So let me recap, in a nutshell.

Someone said that flying is a privilege. I said, no, it's not. He said, yes it is, because that's what the Supreme Court has ruled. I said, no, that's irrelevant: I'm making a philosophical point that would hold in _any_ country. The Constitution/Supreme Court is not the source of morality (including moral issues, such as what a privilege) is; reality is. It's a moral question, not a legal one.

> Constitution is not just not a source for our morality and values; it is deliberately designed to avoid those questions.

Exactly my point, although you seem to be trying to argue against me here.

Separately, I think the Constitution happens to be morally right with regards to the 4th Amendment, and that the government is not legally acting in accordance with the 4th Amendment.

The issue isn't that flying is a revocable privilege. I agree with you that it isn't. The issue is that any moment, you have the ability to present yourself or not present yourself for a TSA safety screening at an airport. The TSA search is thus discretionary. The TSA is not allowed to seek you out, and they aren't allowed to pick you out of a crowd at the airport while allowing everyone else to go to the gate unmolested.

As a result, TSA searches meet the tests for "administrative searches", just like courthouse searches do.

You & I probably agree that there is a moral imperative to respect people's privacy, and that the state has a moral imperative to minimize searches. My argument certainly isn't that there's no such thing as "morality", nor is it that your moral evaluation of TSA searches is wrong (again, I find them grossly offensive as well). All I'm saying is, the immorality of TSA searches does not make them unconstitutional; the Constitution defers most of morality to the legislature, and has often been an umbrella protecting immoral laws.

I'm sorry but you are just making sh*t up and while usually it is best just to ignore such posts; this is too important to let stand unopposed. The Declaration of Independence and the US Constitution are firmly founded and derive from natural law. How can you say the Constitution largely avoids moral concerns when slavery and its role was foundational to the document's very existence? If there had been no agreement regarding humans as property in the US Constitution there would have been no republic. Period.

Revisionist nonsense is just revisionist nonsense.

The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not. An "unconstitutional law" is still the law of the land until it is duly repealed by Congress.

The concept of judicial review does not even exist in the Constitution nor was it even debated by the founders. It was entirely a power grab in the aftermath of Marbury v Madison. Whether its establishment as a pro forma power was for the better of the country is debatable. The history of the SCOTUS is long and tangled.

SCOTUS has zero power to enforce any of its decisions other than budgetary control of the federal courts. It is a political institution just like any other but with a unique set of tribal rules. It offers its opinions, and if it offers too many contrary to public opinion it becomes irrelevant to political life.

> I'm sorry but you are just making sht up*

Um, no; for a non-lawyer (at least I think he is), Thomas is one of the more knowledgeable people around about the law.

> The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not.

You're quibbling. Yes, lawyers all learn in first-year Con Law that Marbury v. Madison [0] was a bootstrapped, ipse dixit assumption of authority by the Supreme Court. But almost uniformly, state and federal officials have gone along with it.

EXAMPLE: When Arkansas state officials tried to block enforcement of the Court's [1] school-desegregation rulings, President Eisenhower sent the 101st Airborne to Little Rock to escort the black students, known as the Little Rock Nine, to school [2].

The only significant exception I can think of is from the Civil War: Chief Justice Roger Taney ruled that only Congress had the power to suspend habeas corpus and therefore a suspected southern-sympathizing saboteur in Maryland could not be detained by the Union Army without judicial process. This was Taney's ruling as an individual circuit justice, not a decision of the full Court. President Lincoln and the Army ignored the ruling, but a year later the prisoner in question was released (along with others). The case was Ex parte Merryman [3].

> An "unconstitutional law" is still the law of the land until it is duly repealed by Congress.

See above.

NOTES:

[0] http://en.wikipedia.org/wiki/Marbury_v._Madison

[1] Style convention: Whenever you see "the Court" in American legal writing, it is supposed to refer only to the Supreme Court of the United States; all other courts are referred to as "the court" (lower-case c). EXCEPTION: In a brief, you capitalize references to the court you're in, for example, "this Court previously ruled ...."

[2] http://en.wikipedia.org/wiki/Little_Rock_Nine#Armed_escort -- for photos, see http://66070092.nhd.weebly.com/military-interference.html

[3] http://en.wikipedia.org/wiki/Ex_parte_Merryman

a) "Um, no", but times a thousand!

b) Quibbling? Have you ever practiced law or been involved in it? If not, prepare yourself; you are in for a frustrating experience. What you call quibbling is what you pay several thousand dollars an hour for. That is the essential function of the legal profession. To quibble. However, it is not "quibbling" to state that SCOTUS has no power of judicial review granted in the US Constitution. It is an assumed power; an assumption which could just as easily be undone by another accident of history. Therefore, they are hardly best described as the "ultimate" arbiter. That power remains one of the consent of the governed. Clear?

The examples you state are of the executive branch exercising (illegally) State power for political purposes. It is not the marshals of the SCOTUS directing the US Army or some nonsense.

As for your "lack of memory" regarding the legislative and executive ignoring the dictates of SCOTUS you need look no further back in history than the same civil rights era you point to. Most of the opinions regarding civil rights emanating from the Warren court were flatly ignored for years. It was the force of public political will and some may argue an ascendant media that changed public policy.

See above? To what? I hate to tell you this, but an opinion of SCOTUS is not a magic incantation. According to your view I suppose if SCOTUS decided some absurd conclusion in clear contradiction of the Constitution it would simply be law?

Consider a more realistic scenario. For example if a future Court decides that the absurd Roberts opinion in the "Obamacare" decision and its legal gymnastics regarding the commerce clause is reversible. Do you think the executive and legislative will refund all the taxes and penalties they will have collected in the interim? If we follow your line of reasoning, a future SCOTUS makes the law void as of the date it was enacted, magically as if it never existed. This may be what they teach in high school civics classes (do they still teach those?) but it is not how power ebbs.

The judiciary has no real power other than that of apparent authority. Why do you think they have resisted for so long cameras in the courtroom? Why do they engage in absurd theater of black robes (thankfully no wigs)? Because once people see how the sausage is made that apparent authority evaporates and they are just another arbitrary institution.

SCOTUS and most, but definitely not all, supreme courts throughout history thankfully have been nothing more than theater.

> Have you ever practiced law or been involved in it?

As Thomas correctly notes below, yes; that's how I earn my crust. (A lawyer would have looked that up for herself.)

> The judiciary has no real power other than that of apparent authority.

That's not exactly stop-the-presses news. Lawyers generally are taught it during their first week of law school, just in case they missed it in their college Government 101 courses or high-school civics.

> It is an assumed power; an assumption which could just as easily be undone by another accident of history.

True enough, but the system has worked reasonably well for a couple of centuries now, achieving a kind of dynamic stability. (And yes, I'm mindful of those Court decisions that history has rightly come to regard as, how shall I put this, less than successful, such as Dred Scott, Plessy v. Ferguson, and Korematsu.)

You're welcome to try to convince ~150 million voters and their elected representatives that a change in the arrangement is warranted. Good luck with that; in fact, good luck even getting their attention, given that all of those folks do have a few other things on their minds. Past attempts to overhaul the arrangement have never caught on and in fact have been viewed with suspicion, for example as FDR learned the hard way when he tried to pack the Court in the mid-1930s.

Great I'm glad you agree with me on the facts. They are hard to disagree with. You and your friend "Thomas" can discuss the matter on your own on why he fails to do so.

I see you also seem to share his predilection for ignoring direct questions the answers to which you do not like and so I shall ask you, apparently an expert, more directly:

What is the actual effect of SCOTUS setting aside as unconstitutional duly passed acts of Congress?

Before you answer consider a study of all the acts of Congress struck by SCOTUS from 1953-1997 and the current status of these statutes as summarized by J Mitchell Pickerell [0] Details can be found by following references in the article which any lawyer (regardless of gender) can find.

[0]: http://apps.americanbar.org/publiced/constitutionday/Supreme...

> What is the actual effect of SCOTUS setting aside as unconstitutional duly passed acts of Congress?

That's like asking, what is the actual effect of a thunderstorm. The answer is, it depends.

At a minimum, if a government official were to attempt to enforce a law after it had been declared unconstitutional, almost certainly someone would challenge the enforcement attempt in a lower court. (If no one cared, the law wouldn't have ended up in the Supreme Court in the first place.)

The challenge usually will lead to the lower court's issuance of an injunction prohibiting the government official from continuing with his or her attempt to enforce the law. Disobedience of the injunction is punishable as contempt -- as in, the U.S. Marshals will arrest and jail the disobedient official until the contempt is purged. (I don't have time to go into the details of the contempt process.) I can't remember that ever happening, because the Court's power to declare a statute unconstitutional is essentially universally accepted as a practical matter, even though some theorists challenge it from time to time.

Sometimes the Court rules that the unenforceability is retroactive; this can create practical problems, but institutionally the Court is fully aware of that and takes it into account.

Other times the Court will say that the unenforceability is prospective only, that is, existing actions aren't to be disturbed.

Incidentally, the article by Pickerill (not Pickerell) that you cite doesn't support your view. The article lists the various ways in which Congress has deferred to the Court's rulings, that is, acceded to the Court's authority. For example, Congress might amend an unconstitutional statute to fix the constitutionality problems, or it might repeal the statute entirely.

The person you're replying to is an actual lawyer.

And not a dog? Thanks for answering a question not addressed to you however.

It was really weighing on my mind.

When you asked, "Have you ever practiced law or been involved in it?", I took that to mean you'd want to know that.

Oh ok. Usually, in the English language, and a great many others, when someone asks a question and then answers it in the very next sentence ("If not, prepare yourself; you are in for a frustrating experience") then that sentence is considered a rhetorical answer.

That is, a question not in need of an answer. Hope that helps you.

I don't understand the fundamental argument you are trying to make. On the one hand, you appeal to the Constitution as a document of natural law (it very much isn't, but let's stipulate that it is). Then you proceed to argue that judicial review was a usurpation by the Supreme Court, which has zero power and is apparently increasingly irrelevant.

If you think there is a set of core moral values animating the country, but you don't believe the Supreme Court has the power to enforce those values, to whom are you appealing? Clearly not Congress; it's Congress that passed the law that has you yelling at me.

Maybe because I am making no fundamental argument? I have no interest in a dialog. You made several egregious errors. They were pointed out. First that the US Constitution is not a moral document. Second, that SCOTUS is an "ultimate" arbiter.

If you do not believe that the US Constitution and other founding documents were products of Enlightenment thinking and that natural law principles did not inform the debate then we really have nothing more to discuss. You are simply choosing to remain ignorant of the history. I do not care to grant your stipulation. There is nothing to stipulate to. You are just flatly wrong. I'm assuming you are one of those "living" document types and want to talk about what the meaning of the word "is" is. My tank full of patience for that ran out long ago.

Your reply makes no sense. Also your "yelling" comment is rhetorical grandstanding. I have barely raised an eyebrow, let alone my voice.

I also notice you failed completely to address the fundamental point regarding morality and the US Constitution with respect to slavery. Do you believe it was rational thought and not moral judgments that led to the conclusion that slaves were 3/5 citizens for apportionment?

Then, as you say, we have nothing more to discuss, and I'm spared the need to respond to your non-sequitur question.

Non-sequitur? Perhaps the meaning of that phrase eludes you?

You wrote: "The Constitution largely avoids moral concerns --- or, more precisely, values and substantive rights."

I replied that slavery is essentially a moral question and is at the very heart of the Constitution. It would not have been ratified without it.

You ignored this statement entirely in your vacuous reply.

Did that help you to see how it follows?

"Apart from the obvious argument that flying is a privilege and not a right"

Really? Why is that true? Who gets to decide what's a "right" and what's a "privilege"? On what basis is that determined? What's the means by which the public can challenge those decisions?

Without appropriate answers to those questions, in what way is a society operation under those rules not a totalitarian state?

Well, there's this thing called the Supreme Court, which has established various lower courts, and if you don't like the way things are you find a sympathetic lawyer and file a lawsuit in which you make your argument about how things ought to be different.

I don't like to be condescending, but come on, this stuff is in the constitution too. I feel like sometimes people just read the bill or rights and completely ignore the rest of the thing.

There's no such concept as "a privilege" in the constitution. The constitution isn't a definition of what citizens can do, it's a definition of what the government can do. Like I don't give a crap about the rest of this dumb argument, but drawing some weird distinction and calling one thing a privilege and another a right while wrapping it up int he Constitution is vapid.

Article I Section 6:

The Senators and Representatives shall receive a compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Article I Section 9

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Article IV section 2.1:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Amendment XIV:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State [...]

I personally don't care for textualist arguments, but the concept of privilege is explicitly mentioned 4 times in the Constitution.

EDIT: I'm getting downvoted for pointing out a fact, with citations. Impressive.

These uses of the word "privilege" are all defining rights, not privileges in the sense you mean. Here is an example of Supreme Court jurisprudence on the Privileges and Immunities Clause (from the landmark Slaughterhouse Cases):

[P]rivileges and immunities....are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State....

Or were you claiming above that flying is one of those rights which are fundamental?

Of course not. I was simply responding to the incorrect assertion that the concept of privilege isn't mentioned at all in the constitution. I pointed out that it is.

As far as the type of privilege, consider the privilege of immunity from arrest and accusations of libel etc., that members of Congress enjoy - but only within the legislature. This is a quite limited one, contingent on being a lawmaker and being engaged on legislative business. I mistakenly thought that this would be obvious from a reading of the text.

Of course I am not arguing that flying is a fundamental right. I rather describe it a privilege precisely because it is not fundamental, as observed upthread: https://news.ycombinator.com/item?id=5467700

The Constitution uses the word "privilege", but it does not mention the concept of privilege as you are using it. "Privileges" in the constitution aren't distinct from or weaker than rights - they are considered fundamental rights. The Supreme Court said so and I think their interpretation counts for more than yours.

That is probably why you got down voted - your citation is factual, but completely misleading in context.

To address the specific example you mention here: the privilege of immunity from arrest for members of Congress cannot be infringed except for specific enumerated exceptions. It's not the kind if "privilege not a right" that may be arbitrarily harshly regulated that you were talking about.

The law is not stupid. Courts understand that words have more than one meaning and that context matters. Given how rude and condescending you have been on this thread, you should learn more about how constitutional law actually works.

No, the word "privilege" is mentioned 4 times. None of those instances are used in the same sense as you're using the word. Anyway this has officially crossed into the absurd. You win, bye.

There are appropriate answers to those questions, which come from the field of philosophy, but are generally unrecognized. Which is precisely why the US _is_ heading in the direction of totalitarianism.

USSR existed for 69 years, no major battles were brought over institutions like KGB, that were breaking the democratic soviet constitution.

Take it easy with the tone. No need to be confrontational.

Being confrontational is very often a great strategy, especially in front of a dumb crowd (luckily the Eternal September is yet to happen in full force here).

But (a) I'm not dumb (I was the guy being confronted), and (b) that is not a great strategy on HN because you will be downvoted to oblivion, as happened in this case.

Not generally on the weekends. I've maintained for some time now that HN gets more spiteful, vindictive and petty starting Friday evening and in to Monday morning, every week.

Your post sounds reasonably objective only because we've all been indoctrinated to worship in the churches of democracy, the constitution, and common law. You're actually ruling out a whole class of dissent that recognizes USG is simply not working as intended nor producing good results. Of course showing up to the polls and voting for non-incumbent candidates ends up looking like lively dissent when real dissent has been so marginalized.

I can't claim the above will ever be a popular opinion (and your comment is only net negative because it's combative and so blatantly inconsistent with TSA reality), but the technologies that replace our decaying systems of social organization won't be designed by committees either.

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