Comment by guylhem | Hacker News Reader

Comment by guylhem | Hacker News Reader

Before, I wondered how such things could not be found in violation of the constitution, while they were obviously taking property without prosecution, guilty until proven innocent, etc.

The answer is simple: because someone in power said so, and with his thugs buddies pressured the right people to turn it into law - aka "might makes right"

A recent US exemple: civil forfeiture, even of the money you set aside for your own legal representation, is totally ok, even if it actually impedes your right to defend yourself, cf http://www.economist.com/blogs/democracyinamerica/2014/02/ci...

To those who still can't believe civil forfeiture in the US, here is a sweet example in the EU. The constitution explicitely says : "The Union shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of any Member State" (article 125 of the Maastricht treaty aka constitution)

Yet the european court of justice, equivalent to the supreme court, found that bailing out Greece etc. by the European Stability Mechanism (purchase of dubious greek debt) was perfectly kosher.

Now people object to the idea of the european central bank doing quantitative easy, for similar reasons - because it's against the basic premises of the ECB, the constitution, etc, but it will be done, regardless of what the law says, if enough pressure is applied by those in power to result in what is in practice disregarding the law.

Basically, you can have a crystal clear constitution saying X is strictly illegal, but unless it's followed in practice, it's as worthless as the freedom of expression that was granted to the citizens of USSR by its own laws.

There used to be a separate judiciary power - even the state was subject to laws. It is no longer the case. This separate power is being swallowed by the state.

Is it profond disrespect of not just the spirit, but the letter, of any constitution? Whatever. "Might makes right"

(Edit: clarified)

I've said it several times before here, and I'll say it again. US needs a "Constitutional Court" that filters out unconstitutional bills after they are signed by the president, and before they become law. Some might still get through, but everything else will function just like it does today, so there will still be a chance for for that bad law to reach the Supreme Court and be struck down once and for all.

The benefit of a Constitutional Court however is that it should filter out most of the unconstitutional bills trying to pass the government. I feel that right now it's way too easy for Congress/president to pass an unconstitutional bill, and then waiting anywhere from 5 to 20 years (or to never), to strike down that law, time in which a whole generation can be abused by the government (which I find unacceptable - bad laws should be struck down much sooner).

I also think special Courts are usually bad news as they tend to become biased towards their purpose. So for example a "patent Court" will become biased towards patents, a spying Court will become biased towards spying and so on. But in this case, a Constitutional Court becoming biased towards the Constitution would actually be a good thing.

How do you set up the incentives so that it's in the interest of the court to do its job, and not bow to the inevitable pressure to rubber-stamp bills?

If you asked Washington or Jefferson probably something like death for those who have (treasonously) knowingly violated the constitution.

That isn't treason, actually. Treason is specifically defined in the 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.

Perhaps not to that definition but the according to websters. 'the betrayal of a trust or confidence; breach of faith; treachery.'

Then perhaps Washington or Jefferson would point out the specious reasoning in summary executions for having " (treasonously) knowingly violated the constitution" using a definition of treason which is unconstitutional.

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual." -Thomas Jefferson

If you want to argue that personal liberty should take precedence over the authority of governments, fine.

You can't, however, argue for strict constitutionalism and what appears to be a form of anarchism at the same time.

That the constitution should be treated as a sacred body of law for which an 'improper' interpretation by the government could be a killing offense is not actually a constitutional precept, and it's not one with which the will of the majority would agree, nor is it an interpretation which legal precedent supports, your single, not actually legally binding quote by Thomas Jefferson notwithstanding.

So pick one. If it's the latter, the redefinition of treason is indefensible as a pretext. If it's the former, dispense with the constitution altogether, as it interferes with the efficient execution of popular will.

Does the constitution define all laws? No. There is nothing about petty theft, or murder even. The truth is corruption runs rampant in this country and Jefferson knew that sometimes the only solution to tyranny is the tyrant's head at the end of a pike. This isn't about 'improper interpretations', its about the theft of liberty.

And who enforces that? The Constitutional Court Court? You've only moved the problem.

The people, if you can get a representative number of signatures the individual is incarcerated and a measure is put on the ballot.

That is a pretty broad shift from the theory of how courts operate in the U.S.

We have an adversarial system where the legality of a law attacked by someone harmed by that law and defended by the government. Who would a constitutional court represent? Dead white guys from 1780? Someone else?

If created, the first thing the court would do would be to rule itself out of existence, because the Supreme Court is at river of what is/isn't constitutional... And has been recognized as such since John Jay.

"If created, the first thing the court would do would be to rule itself out of existence, because the Supreme Court is at river of what is/isn't constitutional... And has been recognized as such since John Jay."

If created through a constitutional amendment, this isn't a concern...

And yet the FISA Court is not adversarial.

I like the sentiment of the idea but in practice, I'm not sure it actually works. The major issue is embedded within this quote in the article: "Using a law designed to catch drug traffickers, racketeers and terrorists by tracking their cash, the government has gone after run-of-the-mill business owners and wage earners without so much as an allegation that they have committed serious crimes"

Maybe that law would have been caught by the constitutional court, and maybe not. But in any case, it's clear that the modus operandi of too many government agencies is to find an existing law that can be most easily bent or twisted from it's original purpose and context in order to allow them to most effectively enforce what they want to enforce.

Perhaps what's really needed is more upfront transparency - transparency by design. Which, of course, is exactly what governments don't want. But that might be the only truly effective approach, because you aren't going to stop bureaucrats from doing what they do, and power by it's very nature corrupts. But whether it's this case, or the spying scandals, or police abuses, the thing that got the most results, fastest, was exposure of the situation to the public.

Well, we already have a version of that for the Executive branch in the form of the Office of Legal Counsel, and that's how we got John Yoo and Jay Bybee.

You know that governments tend to abuse their power over us, so you want one arm of the government to keep the other one in check? One head of the Hydra will prevent the others from biting you?

The US is a prime example of how a limited government just doesn't stay limited. Words on a piece of parchment don't actually prevent psychopath rulers from abusing us. The USSR had a constitution too, and it "guaranteed" free speech just as well as any other constitution would, ie. not at all.

There's no political solution to the abuses caused by an arrangement of rulers vs subjects. The only way to improve things is to realize we should not have rulers at all.

"I've said it several times before here, and I'll say it again. US needs a "Constitutional Court" that filters out unconstitutional bills after they are signed by the president, and before they become law."

We already have this. It's called The Supreme Court. The Supreme Court can already declare any law unconstitutional.

Yeah but they don't have an automatic veto before legislation goes into effect. As he said, they only examine the issue, if at all, years later.

> I've said it several times before here, and I'll say it again. US needs a "Constitutional Court" that filters out unconstitutional bills after they are signed by the president, and before they become law.

The reason the US does not have such a thing is that the principal of the US judicial system is to operate on real controversies with real, concrete interested parties rather than dealing with abstract, theoretical conflicts.

> I also think special Courts are usually bad news as they tend to become biased towards their purpose. So for example a "patent Court" will become biased towards patents, a spying Court will become biased towards spying and so on. But in this case, a Constitutional Court becoming biased towards the Constitution would actually be a good thing.

I think you mistake the way that specialty courts become biased -- like other regulatory bodies, they become biased by developing a strong relationships with the most-frequently involved parties appearing before them. For a Constitutional Court, where the potential pre-implementation challengers of a law are varied, but the defenders are the same, the expected bias is probably not in the direction you'd like.

I think you can easily say the same thing about every single amendment in the Bill of Rights. Might does indeed make right and usually might is money. While the article points out that making deposits below 10k is not illegal and while that maybe technically correct, just like many things that were not explicitly illegal in the Communist system could harm one greatly, many things that are not strictly illegal in the US can harm one greatly. I think we need to start looking at things another way.

For lack of better words (though I'm open to suggestions) it is essentially illegal in the US to travel with cash, make deposits under $10k, or really, anything the government authorities deem to be illegal vis a vis money that can be taken via civil forfeiture laws. If one can't run a business or even save for his children's college without fear of losing the money to the government, what then is the difference between our system and that of authoritarian regimes if both systems are not ruled by laws but by the greed of police and government agencies?

More poignantly, what is the difference between our system and the system of English law in effect at the time of the Revolutionary War?

> what then is the difference between our system and that of authoritarian regimes if both systems are not ruled by laws but by the greed of police and government agencies?

That is not fair. There is a huge difference between the systems, I have lived in both a communist totalitarian country and in US.

And the difference is this:

US government and the culture as a whole has much better handle on PR and brainswashing. In the communist regime I know, very few privately believed or respected any of the ideals about the "party". All those slogans and so on.

In contrast in US many believe in fantasies and have a very distorted view of reality. Either that government is totally useless and evil or that one should obey, listen, be proud of it, and sign up to go fight wars on its behalf when it asks you, because it is the "best country in the world".

In rest, effectively, how much power the "lower classes" have is about the same as in the other regime. With some trade-offs. For example. Here they have the "freedom of speech". So anyone can grab a megaphone and go stand at the corner downtown, and yell about space lizards. That is nice. In the communist country they would be in an mental institution or maybe a work camp. Also here they can buy an iPhone, say, if they save enough and maybe sell enough food stamps. But on the other hand, they don't get free housing and healthcare. Which is what the communist regime had.

My parents grew up in the Polish People's Repuplic and they basically come to the same conclusion. I've heard several time that none of their friends believed the propaganda, they just all played by the rules.

Yes, I agree that the US brand of tyranny is much more clever and doesn't need to suppress things like speech because it realizes that "free speech" is mainly irrelevant and does not threaten its all out rule. Also, having lived under both systems, I agree with the conclusion that most people under Communism, at least the Eastern European kind, did not believe the government B.S. and thus were generally much smarter than the people who believe that B.S. here in the US despite having very few connections to the outside world and unbiased information compared to US citizens.

In the end however, there is no difference and this is more than a fair comparison. Tyranny is tyranny. Being able to buy an iPhone or gab into a megaphone doesn't change a thing.

I feel that our system is just a lot more subtle. It mainly gives the illusion of freedom and choice.

I'm not sure the Greek debt thing is relevant. The fact that the EU is not liable for Greece's debts does not mean it can not choose to give money to Greece.

Once you get over what a mess the system is, once you lower expectations, instead of being depressing it can actually be interesting. Try to see it from a detached observer status, even though it affects you and people you love, because you cannot do anything about it anyway. A great teaching tool about our powerlessness is the StarPower game, play it with people someday:

http://en.wikipedia.org/wiki/StarPower_(game)

I'm of the opinion this sort of thing cannot be changed, it's just a mechanism of humanity. Cynical, selfish people rise to the top, those who optimize for power get it. They self-select. Ambition for power, for control over others is not something people with empathy would want to work hard for.

Revolutions just change who is in power, they never change the dynamics, and often make it much worse. Think Animal Farm.

Western Democracies have a shit load of problems, but I actually think they're the least worst option. At least we mostly get free internet and free press.

I actually think one of the worst problems we have is that so many people are actually ok with violence against black people. Trayvon Martin, police shootings, rampant prison violence. That's probably the thing I am least OK with in our society, well that and violence against women, but these are actually a problem with the attitudes of the general population and local governments, not a big bad corrupt federal government.

I also think the FBI is a pretty good organization when it comes to fighting political corruption. FBI agents are seriously committed to rooting out corrupt politician, and if anything the FBI's capabilities to go after politicians was actually a threat to our democracy when Hoover was running that organization. So even if you mistrust the FBI, that's something to be thankful for.

> I'm of the opinion this sort of thing cannot be changed, it's just a mechanism of humanity. Cynical, selfish people rise to the top, those who optimize for power get it. They self-select. Ambition for power, for control over others is not something people with empathy would want to work hard for.

In that regard, things are quite a bit better than they were, say, in the fourteenth to sixteenth centuries. Eighteenth century Europe brought a kind of reform to business, the new discipline of economics started to hold politicians at least somewhat accountable for forwarding the cause of trade for its own sake. They of course still routinely interfered with commerce in service of their own ends, but this sort of thing became frowned upon enough to become a major issue in the democratic revolutions of the period.

So I wouldn't say that it can't be changed, our ability to organize on levels large and small is slowly evolving for the better, and one of the big drivers of that evolution is outrage.

At one point in human history, effective leadership was a big stick and the strength to wield it. Now even the most brutish strongman needs to have certain social graces or he won't be in power for long.

I agree with both of you. The system cannot be changed within our lifetime, so sit back, grab some popcorn, and enjoy the show. That being said, over the long-term, there does seem to be slow progress.

I think in the end you have to realize that 'rule of law' is really a restricted form of 'rule of man', since it has to be enforced by people.

And laws are written by people too.

And broken by them - it just depends on who you are or what power you wield as to how you are handled for breaking them.

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