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You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline i

You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat it. 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.

ironmagma 6y ago
We are objectively an oligarchy; there's no other explanation that makes sense.
- kmlx 6y ago
  objectively your post is false. the US has a flawed democracy, but a democracy nonetheless: https://en.m.wikipedia.org/wiki/Democracy_Index https://en.m.wikipedia.org/wiki/Democracy_Index consider the rest of the countries in that list
  - FirstMatey80 6y ago
    That index seems flawed. The methodology is not transparent. The Economist is not going to accuse its own ownership of oligarchy.
    - rsynnott 6y ago
      I mean, the UK isn't exactly doing _great_, if you go by the thesis that they're showing favouritism. It's about 0.5 points above the US, mostly due to better electoral process and political participation (which seems... fair?) but 1.5 points behind the highest. 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_.
    - Phanyxx 6y ago
      In what way do you feel it's flawed? Based on what you know of the methodology, what would you change?
  - pmiller2 6y ago
    A state can be both a de facto oligarchy and a flawed democracy. Thus, your comment does nothing to rebut the GP assertion.
AndrewBissell 6y ago
The intelligence community has been above the law in the United States for a long, long time. The ability to classify (and hence shield from oversight or accountability) any action which is deemed "in the interest of national security" was codified in the National Security Act of 1947 which created the CIA and NSA.
- kevin_thibedeau 6y ago
  EO12333 includes a fourth amendment bypass for people subject to background investigations. It's easy to redirect that capability for the general population.
Barrin92 6y ago
Seems to have a long tradition. I'm still baffled by how little punishment there was for Iran-Contra, key people were simply pardoned by Bush, or how little punishment there was for the Abu Ghraib prisoner torture, just looking at the pictures of the wikipedia article makes me want to throw up.
- danenania 6y ago
  It seems to me that just the pardon power by itself is fundamentally incompatible with democracy and the rule of law. 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.
  - brlewis 6y ago
    Question for history buffs: What are some instances where you'd say, "Gee, I'm glad Presidential pardon was available"?
    - segfaultbuserr 6y ago
      The standard answer, of course: a war, especially after a national civil war, prosecuting everyone who participated in the enemy's side will be a disaster. Also whistleblowing cases.
      - laughinghan 6y ago
        To the extremely limited and minimal extent that whistleblowers have been pardoned, good on that president/governor, but I think it is atrocious that whistleblower protection relies on pardon power—we need much, much stronger protections for whistleblowers, in my opinion. 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.
bcrosby95 6y ago
So the Colorado Civil Rights Commission would be put in prison due to the results of the Masterpiece Cakeshop decision?
R0b0t1 6y ago
It is impossible to hold civil servants accountable at all levels of government. As long as you believe you were operating within the law, regardless of if you were or not and what effect that may have had on other people, you seem to be unapproachable. Eventually this is going to lead to civil servants being lynched.
- badrabbit 6y ago
  If you have a signed confession and video recording of civil servants intentionally violating the law, should they not be punished?
  - sjy 6y ago
    Such a person did not “believe they were operating within the law” as stated by the grandparent.
dimitrios1 6y ago
Maybe some laws just don't have penalties? Having laws with no penalties is rather common. https://politics.stackexchange.com/questions/26724/what-is-the-purpose-of-issuing-laws-regulations-without-penalty https://politics.stackexchange.com/questions/26724/what-is-t...
- warent 6y ago
  Wow, this is an outstanding post and could probably be an HN submission in its own right. Thank you for sharing.
  - deleted 6y ago
    [deleted]
  - willvarfar 6y ago
    People reading these comments agreed ;) https://news.ycombinator.com/item?id=24357314 https://news.ycombinator.com/item?id=24357314
- wahern 6y ago
  There's an old maxim in the Common Law that "every right has a remedy". But it's just a maxim, and rights are often recognized long before any remedy. One of the most recent (relative to the long term) and conspicuous attempts by American courts to try to judicially craft a remedy was the creation of the so-called Bivens Action, which permits citizens to sue Federal officials for civil rights violations in the absence of any statute. See https://www.law.cornell.edu/wex/bivens_actions https://www.law.cornell.edu/wex/bivens_actions and https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Ag... But over the past 40 years conservative justices have not only cabined but nearly extinguished Bivens claims, arguing that it abrogates the principle of sovereign immunity and subverts the legislative process. Ironically (or not so ironically), the same justices over the same timespan have judicially created defenses to S.1983 civil rights suits, protecting state officials in contravention of clear constitutional and statutory text. Both sides promote a background principle of law in contravention of nominal legal texts; "every right has a remedy" and individual justice in the case of the liberal faction, sovereign immunity in the case of the conservatives.
macspoofing 6y ago
>How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? 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.
- badrabbit 6y ago
  The executive branch. Following orders or implementing a law that violates citizens right should come with criminal consequence. I don't care who found it unconstitutional, there should be criminal punishment after a court rules that a crime was committed. Of course either side can appeal all the way to the supreme court using any laws or precedent. But if the final verdict is that a government official violated a citizens right, that official should be punished. If a law maker intentionally proposed a law that violates constitutional rights, there should be consequences. If a judge rules or operates intentionally to violate these rights there should be a punishment. 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.
  - sjy 6y ago
    Government officials do face charges when they commit crimes such as abuse of public office. A court decision on the interpretation of the Constitution is not a “ruling that a crime was committed.” Drawing on your doctor analogy, it’s more like new evidence showing that a particular treatment is not as safe as previously believed. It doesn’t necessarily follow that the doctor is criminally or civilly liable for providing that treatment in the past – something more, like negligence or recklessness, is needed.
    - 6y ago
TheSpiceIsLife 6y ago
Be careful what you wish for. Mandatory sentencing removes any possibility of judicial discretion. And then there's the problem that gaol tends not to reform people.
- ahelwer 6y ago
  For crimes like this it isn't a matter of "reform" in the same way as when dealing with regular anti-social behavior by individuals. These are people who have been given huge amounts of resources and trust then betrayed us all. I would be very happy for them to be permanently banned from any position in government for the rest of their lives. Instead, nothing happens to them and they fail upwards.
  - TheSpiceIsLife 6y ago
    Mandatory sentencing would require a guilty conviction though. 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.
    - jessaustin 6y ago
      ...will swiftly find themselves unemployed, or worse... 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.
johnnyo 6y ago
The problem with your idea is that the court is sometimes weighing/balancing competing rights and responsibilities from separate parts of the Constitution. For example, when is a church’s hiring practice an equal protection violation? Or is it an exercise of freedom of religion?
- keanebean86 6y ago
  That gives me an idea for some big time controversy. Pass a law that says your religion can override specific laws such as hiring discrimination. In exchange for those freedoms the government now gets to enforce your religion's rules on your followers if you're not doing it. Or at least the government can fine/sue your organization for failure to enforce the rules. 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
  - dwighttk 6y ago
    > That's such a bad idea .
- badrabbit 6y ago
  Let's say the hiring practice of a church is unlawful, it would not be constitutional law that was violated. Now the Church might sue and say their freedom to excercise their faith is being violated. If a judge rules in good faith against the Church and a higher court reverses that decision the judge should not be found any wrongdoing. I did not mean incorrect rulings should be punished, I meant malicious ignorance and violation of the constitition should be punished. 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.
ed25519FUUU 6y ago
What updates does the US constitution need? I think if we were to rewrite it today it would become largely the same, maybe with a footer that says “and this time we really mean it”
- sudosysgen 6y ago
  I'd say the Second Amendment would need to be tweaked. Our gun control laws are honestly really in breach, and I think they are very sensible pieces of legislation, so we should make everything consistent.
  - Alupis 6y ago
    The views of Californian's are not universally shared throughout the country.
    - ihumanable 6y ago
      You do realize that California's strict gun control laws were passed by Reagan right?
      - Alupis 6y ago
        You mean the Mulford Act - Prohibiting Open Carry in California? 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.
      - bacondude3 6y ago
        So? Who's responsible for passing a bad law doesn't make the law not-bad.
      - refurb 6y ago
        No. There have been at least a couple dozen gun control laws passed in CA since Reagan. Hell, they passed more than 5 in the last 2 years.
Yc4win 6y ago
The government commits so many felonies and break so many laws daily that laws are really just for us peasants these days.
Mountain_Skies 6y ago
Once the court has ruled, if those officials continue to engage in that activity, they can be held in contempt and imprisoned indefinitely until they stop engaging in that activity. The system achieves the goal of stopping the activity in question. What it doesn't do is create a deterrent for others who will engage in the same or similar activity in the future.
- badrabbit 6y ago
  Yes, so being in contempt is the what is being punished. Like you said, being told to stop is the only consequence.
ardy42 6y ago
> You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat 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?
- downrightmike 6y ago
  We can and do love building prisons.
  - adventured 6y ago
    > We can and do love building prisons. 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).
outside1234 6y ago
VOTING is the penalty for many of these transgressions...
- DennisP 6y ago
  A major reason for the Bill of Rights is to make sure the majority can't take away the rights of the minority. If the only penalty is voting, that doesn't work.
- badrabbit 6y ago
  Voting gets the violators out of office (rarely works, but let's say it does) but it does not punish them for their explicit malicious violation of the law.
vonwoodson 6y ago
You can’t hold a random analyst, usually a contractor and not a “government official”, for not sharing your opinion on what a 200-year old, intentionally vague, document meant about who-was-contacting-who on a pice of technology that wasn’t invented. Let alone a law that was, albeit controversial at the time, in place for almost 20 years. Would you prefer that your public servants follow the law... or do whatever they feel like? Do what they personally think is the most moral, regardless of what actually elected officials have told them to do? Metadata is not the content of the calls but the data that the users put out to the world. The public facing data that’s necessary to even process communication in the first place. To use analogy, this would be like imprisoning a postal worker for reading the address on the outside of the envelope. The idea went that: if the intelligence community chooses to use that information for some thing other than just delivering the letter, that’s no more illegal than if you were to stand on a soapbox and scream all the bad things you did and the cops decided to hold some of that against you in court. IE. if you put it out there, than you don’t consider it a secret. But, now, (if the Supreme Court doesn’t step in), the policies will change in the state won’t be used anymore. And, those faithful public servants, who were following the law, will now follow the new law. And, the system works to protect your freedoms. Whereas, under your ideal, all the public servants that were following the law would be imprisoned and we’d have to find new public servants.. and threaten them with imprisonment if they don’t do what’s morally correct without respect to what they’re actually being told to do by the courts.
- StillBored 6y ago
  We hold low grade solders responsible for following illegal orders, even when those orders come from the very top of the chain of command. 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).
  - throwaway0a5e 6y ago
    >We hold low grade solders responsible for following illegal orders, even when those orders come from the very top of the chain of command. We mostly don't unless we're looking for scapegoats.
lr 6y ago
Your comment makes it so obvious why the current President, who busts norms on a daily basis, is so dangerous: no one is going to hold him accountable. "First they came..."
dn3500 6y ago
You know what I don't get? Why is Edward Snowden, who exposed these crimes, being treated like a criminal?
- mLuby 6y ago
  He knowingly and clearly broke laws by stealing and disclosing classified information. I think he was ethically correct to do so, and his act qualified as civil disobedience, but that's why the US government is after him.
  - propogandist 6y ago
    Media is calling Snowden a "leaker" rather than whistleblower, because Trump has been considering pardoning him. The only thing the media cares about is 'orange man bad'. >Trump says he is considering pardon for leaker Edward Snowden https://www.reuters.com/article/us-usa-politics-snowden/trump-says-hes-considering-pardon-for-leaker-edward-snowden-idUSKCN25B10Z https://www.reuters.com/article/us-usa-politics-snowden/trum... discussion: https://news.ycombinator.com/item?id=24174265 https://news.ycombinator.com/item?id=24174265
    - triceratops 6y ago
      TIL: one headline constitutes "the media". Also: https://www.foxnews.com/politics/congressional-report-slams-nsa-leaker-edward-snowden https://www.foxnews.com/politics/congressional-report-slams-...
    - Voliokis 6y ago
      Seems to me like you're the one that cares too much about "orange man bad". https://www.newyorker.com/news/amy-davidson/edward-snowden-the-n-s-a-leaker-comes-forward https://www.newyorker.com/news/amy-davidson/edward-snowden-t... https://phys.org/news/2016-07-wikileaks-nsa-leaker-edward-snowden.html https://phys.org/news/2016-07-wikileaks-nsa-leaker-edward-sn... https://edition.cnn.com/2014/01/23/us/edward-snowden/index.html https://edition.cnn.com/2014/01/23/us/edward-snowden/index.h... https://www.dallasnews.com/news/politics/2013/06/12/try-nsa-leaker-edward-snowden-for-treason-says-sen-john-cornyn/ https://www.dallasnews.com/news/politics/2013/06/12/try-nsa-... https://abcnews.go.com/Blotter/nsa-leaker-edward-snowden-fails-board-flight-moscow/story?id=19470645 https://abcnews.go.com/Blotter/nsa-leaker-edward-snowden-fai... https://www.france24.com/en/20140807-snowden-russia-nsa-residence-permit https://www.france24.com/en/20140807-snowden-russia-nsa-resi... https://www.newsweek.com/edward-snowden-latest-nsa-leaker-wont-be-leaving-russia-germany-anytime-569266 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.
salawat 6y ago
18 U.S. Code § 242.Deprivation of rights under color of law 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. https://www.law.cornell.edu/uscode/text/18/242 https://www.law.cornell.edu/uscode/text/18/242
ksherlock 6y ago
In the Athens Democracy, the Graphe paranomon (their version of SCOTUS, sort of) could punish legislators that had proposed "unconstitutional" laws. https://en.wikipedia.org/wiki/Graphe_paranomon https://en.wikipedia.org/wiki/Graphe_paranomon
cm2187 6y ago
Including the second amendment
thecureforzits 6y ago
States willing to call a constitutional convention almost have the numbers to do it at this point and they lean hard right. https://conventionofstates.com/ https://conventionofstates.com/
visarga 6y ago
> You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). 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.
dragonwriter 6y ago
> 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. 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.

ironmagma 6y ago

We are objectively an oligarchy; there's no other explanation that makes sense.

kmlx 6y ago
objectively your post is false. the US has a flawed democracy, but a democracy nonetheless: https://en.m.wikipedia.org/wiki/Democracy_Index https://en.m.wikipedia.org/wiki/Democracy_Index consider the rest of the countries in that list
- FirstMatey80 6y ago
  That index seems flawed. The methodology is not transparent. The Economist is not going to accuse its own ownership of oligarchy.
  - rsynnott 6y ago
    I mean, the UK isn't exactly doing _great_, if you go by the thesis that they're showing favouritism. It's about 0.5 points above the US, mostly due to better electoral process and political participation (which seems... fair?) but 1.5 points behind the highest. 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_.
  - Phanyxx 6y ago
    In what way do you feel it's flawed? Based on what you know of the methodology, what would you change?
- pmiller2 6y ago
  A state can be both a de facto oligarchy and a flawed democracy. Thus, your comment does nothing to rebut the GP assertion.

AndrewBissell 6y ago

The intelligence community has been above the law in the United States for a long, long time. The ability to classify (and hence shield from oversight or accountability) any action which is deemed "in the interest of national security" was codified in the National Security Act of 1947 which created the CIA and NSA.

kevin_thibedeau 6y ago
EO12333 includes a fourth amendment bypass for people subject to background investigations. It's easy to redirect that capability for the general population.

Barrin92 6y ago

Seems to have a long tradition. I'm still baffled by how little punishment there was for Iran-Contra, key people were simply pardoned by Bush, or how little punishment there was for the Abu Ghraib prisoner torture, just looking at the pictures of the wikipedia article makes me want to throw up.

danenania 6y ago
It seems to me that just the pardon power by itself is fundamentally incompatible with democracy and the rule of law. 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.
- brlewis 6y ago
  Question for history buffs: What are some instances where you'd say, "Gee, I'm glad Presidential pardon was available"?
  - segfaultbuserr 6y ago
    The standard answer, of course: a war, especially after a national civil war, prosecuting everyone who participated in the enemy's side will be a disaster. Also whistleblowing cases.
    - laughinghan 6y ago
      To the extremely limited and minimal extent that whistleblowers have been pardoned, good on that president/governor, but I think it is atrocious that whistleblower protection relies on pardon power—we need much, much stronger protections for whistleblowers, in my opinion. 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.

bcrosby95 6y ago

So the Colorado Civil Rights Commission would be put in prison due to the results of the Masterpiece Cakeshop decision?

R0b0t1 6y ago

It is impossible to hold civil servants accountable at all levels of government. As long as you believe you were operating within the law, regardless of if you were or not and what effect that may have had on other people, you seem to be unapproachable. Eventually this is going to lead to civil servants being lynched.

badrabbit 6y ago
If you have a signed confession and video recording of civil servants intentionally violating the law, should they not be punished?
- sjy 6y ago
  Such a person did not “believe they were operating within the law” as stated by the grandparent.

dimitrios1 6y ago

Maybe some laws just don't have penalties? Having laws with no penalties is rather common. https://politics.stackexchange.com/questions/26724/what-is-the-purpose-of-issuing-laws-regulations-without-penalty https://politics.stackexchange.com/questions/26724/what-is-t...

warent 6y ago
Wow, this is an outstanding post and could probably be an HN submission in its own right. Thank you for sharing.
- deleted 6y ago
  [deleted]
- willvarfar 6y ago
  People reading these comments agreed ;) https://news.ycombinator.com/item?id=24357314 https://news.ycombinator.com/item?id=24357314
wahern 6y ago
There's an old maxim in the Common Law that "every right has a remedy". But it's just a maxim, and rights are often recognized long before any remedy. One of the most recent (relative to the long term) and conspicuous attempts by American courts to try to judicially craft a remedy was the creation of the so-called Bivens Action, which permits citizens to sue Federal officials for civil rights violations in the absence of any statute. See https://www.law.cornell.edu/wex/bivens_actions https://www.law.cornell.edu/wex/bivens_actions and https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Ag... But over the past 40 years conservative justices have not only cabined but nearly extinguished Bivens claims, arguing that it abrogates the principle of sovereign immunity and subverts the legislative process. Ironically (or not so ironically), the same justices over the same timespan have judicially created defenses to S.1983 civil rights suits, protecting state officials in contravention of clear constitutional and statutory text. Both sides promote a background principle of law in contravention of nominal legal texts; "every right has a remedy" and individual justice in the case of the liberal faction, sovereign immunity in the case of the conservatives.

macspoofing 6y ago

>How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? 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.

badrabbit 6y ago
The executive branch. Following orders or implementing a law that violates citizens right should come with criminal consequence. I don't care who found it unconstitutional, there should be criminal punishment after a court rules that a crime was committed. Of course either side can appeal all the way to the supreme court using any laws or precedent. But if the final verdict is that a government official violated a citizens right, that official should be punished. If a law maker intentionally proposed a law that violates constitutional rights, there should be consequences. If a judge rules or operates intentionally to violate these rights there should be a punishment. 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.
- sjy 6y ago
  Government officials do face charges when they commit crimes such as abuse of public office. A court decision on the interpretation of the Constitution is not a “ruling that a crime was committed.” Drawing on your doctor analogy, it’s more like new evidence showing that a particular treatment is not as safe as previously believed. It doesn’t necessarily follow that the doctor is criminally or civilly liable for providing that treatment in the past – something more, like negligence or recklessness, is needed.
  - 6y ago

TheSpiceIsLife 6y ago

Be careful what you wish for. Mandatory sentencing removes any possibility of judicial discretion. And then there's the problem that gaol tends not to reform people.

ahelwer 6y ago
For crimes like this it isn't a matter of "reform" in the same way as when dealing with regular anti-social behavior by individuals. These are people who have been given huge amounts of resources and trust then betrayed us all. I would be very happy for them to be permanently banned from any position in government for the rest of their lives. Instead, nothing happens to them and they fail upwards.
- TheSpiceIsLife 6y ago
  Mandatory sentencing would require a guilty conviction though. 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.
  - jessaustin 6y ago
    ...will swiftly find themselves unemployed, or worse... 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.

johnnyo 6y ago

The problem with your idea is that the court is sometimes weighing/balancing competing rights and responsibilities from separate parts of the Constitution. For example, when is a church’s hiring practice an equal protection violation? Or is it an exercise of freedom of religion?

keanebean86 6y ago
That gives me an idea for some big time controversy. Pass a law that says your religion can override specific laws such as hiring discrimination. In exchange for those freedoms the government now gets to enforce your religion's rules on your followers if you're not doing it. Or at least the government can fine/sue your organization for failure to enforce the rules. 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
- dwighttk 6y ago
  > That's such a bad idea .
badrabbit 6y ago
Let's say the hiring practice of a church is unlawful, it would not be constitutional law that was violated. Now the Church might sue and say their freedom to excercise their faith is being violated. If a judge rules in good faith against the Church and a higher court reverses that decision the judge should not be found any wrongdoing. I did not mean incorrect rulings should be punished, I meant malicious ignorance and violation of the constitition should be punished. 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.

ed25519FUUU 6y ago

What updates does the US constitution need? I think if we were to rewrite it today it would become largely the same, maybe with a footer that says “and this time we really mean it”

sudosysgen 6y ago
I'd say the Second Amendment would need to be tweaked. Our gun control laws are honestly really in breach, and I think they are very sensible pieces of legislation, so we should make everything consistent.
- Alupis 6y ago
  The views of Californian's are not universally shared throughout the country.
  - ihumanable 6y ago
    You do realize that California's strict gun control laws were passed by Reagan right?
    - Alupis 6y ago
      You mean the Mulford Act - Prohibiting Open Carry in California? 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.
    - bacondude3 6y ago
      So? Who's responsible for passing a bad law doesn't make the law not-bad.
    - refurb 6y ago
      No. There have been at least a couple dozen gun control laws passed in CA since Reagan. Hell, they passed more than 5 in the last 2 years.

Yc4win 6y ago

The government commits so many felonies and break so many laws daily that laws are really just for us peasants these days.

Mountain_Skies 6y ago

Once the court has ruled, if those officials continue to engage in that activity, they can be held in contempt and imprisoned indefinitely until they stop engaging in that activity. The system achieves the goal of stopping the activity in question. What it doesn't do is create a deterrent for others who will engage in the same or similar activity in the future.

badrabbit 6y ago
Yes, so being in contempt is the what is being punished. Like you said, being told to stop is the only consequence.

ardy42 6y ago

> You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat 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?

downrightmike 6y ago
We can and do love building prisons.
- adventured 6y ago
  > We can and do love building prisons. 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).

outside1234 6y ago

VOTING is the penalty for many of these transgressions...

DennisP 6y ago
A major reason for the Bill of Rights is to make sure the majority can't take away the rights of the minority. If the only penalty is voting, that doesn't work.
badrabbit 6y ago
Voting gets the violators out of office (rarely works, but let's say it does) but it does not punish them for their explicit malicious violation of the law.

vonwoodson 6y ago

You can’t hold a random analyst, usually a contractor and not a “government official”, for not sharing your opinion on what a 200-year old, intentionally vague, document meant about who-was-contacting-who on a pice of technology that wasn’t invented. Let alone a law that was, albeit controversial at the time, in place for almost 20 years. Would you prefer that your public servants follow the law... or do whatever they feel like? Do what they personally think is the most moral, regardless of what actually elected officials have told them to do? Metadata is not the content of the calls but the data that the users put out to the world. The public facing data that’s necessary to even process communication in the first place. To use analogy, this would be like imprisoning a postal worker for reading the address on the outside of the envelope. The idea went that: if the intelligence community chooses to use that information for some thing other than just delivering the letter, that’s no more illegal than if you were to stand on a soapbox and scream all the bad things you did and the cops decided to hold some of that against you in court. IE. if you put it out there, than you don’t consider it a secret. But, now, (if the Supreme Court doesn’t step in), the policies will change in the state won’t be used anymore. And, those faithful public servants, who were following the law, will now follow the new law. And, the system works to protect your freedoms. Whereas, under your ideal, all the public servants that were following the law would be imprisoned and we’d have to find new public servants.. and threaten them with imprisonment if they don’t do what’s morally correct without respect to what they’re actually being told to do by the courts.

StillBored 6y ago
We hold low grade solders responsible for following illegal orders, even when those orders come from the very top of the chain of command. 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).
- throwaway0a5e 6y ago
  >We hold low grade solders responsible for following illegal orders, even when those orders come from the very top of the chain of command. We mostly don't unless we're looking for scapegoats.

lr 6y ago

Your comment makes it so obvious why the current President, who busts norms on a daily basis, is so dangerous: no one is going to hold him accountable. "First they came..."

dn3500 6y ago

You know what I don't get? Why is Edward Snowden, who exposed these crimes, being treated like a criminal?

mLuby 6y ago
He knowingly and clearly broke laws by stealing and disclosing classified information. I think he was ethically correct to do so, and his act qualified as civil disobedience, but that's why the US government is after him.
- propogandist 6y ago
  Media is calling Snowden a "leaker" rather than whistleblower, because Trump has been considering pardoning him. The only thing the media cares about is 'orange man bad'. >Trump says he is considering pardon for leaker Edward Snowden https://www.reuters.com/article/us-usa-politics-snowden/trump-says-hes-considering-pardon-for-leaker-edward-snowden-idUSKCN25B10Z https://www.reuters.com/article/us-usa-politics-snowden/trum... discussion: https://news.ycombinator.com/item?id=24174265 https://news.ycombinator.com/item?id=24174265
  - triceratops 6y ago
    TIL: one headline constitutes "the media". Also: https://www.foxnews.com/politics/congressional-report-slams-nsa-leaker-edward-snowden https://www.foxnews.com/politics/congressional-report-slams-...
  - Voliokis 6y ago
    Seems to me like you're the one that cares too much about "orange man bad". https://www.newyorker.com/news/amy-davidson/edward-snowden-the-n-s-a-leaker-comes-forward https://www.newyorker.com/news/amy-davidson/edward-snowden-t... https://phys.org/news/2016-07-wikileaks-nsa-leaker-edward-snowden.html https://phys.org/news/2016-07-wikileaks-nsa-leaker-edward-sn... https://edition.cnn.com/2014/01/23/us/edward-snowden/index.html https://edition.cnn.com/2014/01/23/us/edward-snowden/index.h... https://www.dallasnews.com/news/politics/2013/06/12/try-nsa-leaker-edward-snowden-for-treason-says-sen-john-cornyn/ https://www.dallasnews.com/news/politics/2013/06/12/try-nsa-... https://abcnews.go.com/Blotter/nsa-leaker-edward-snowden-fails-board-flight-moscow/story?id=19470645 https://abcnews.go.com/Blotter/nsa-leaker-edward-snowden-fai... https://www.france24.com/en/20140807-snowden-russia-nsa-residence-permit https://www.france24.com/en/20140807-snowden-russia-nsa-resi... https://www.newsweek.com/edward-snowden-latest-nsa-leaker-wont-be-leaving-russia-germany-anytime-569266 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.

salawat 6y ago

18 U.S. Code § 242.Deprivation of rights under color of law 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. https://www.law.cornell.edu/uscode/text/18/242 https://www.law.cornell.edu/uscode/text/18/242

ksherlock 6y ago

In the Athens Democracy, the Graphe paranomon (their version of SCOTUS, sort of) could punish legislators that had proposed "unconstitutional" laws. https://en.wikipedia.org/wiki/Graphe_paranomon https://en.wikipedia.org/wiki/Graphe_paranomon

cm2187 6y ago

Including the second amendment

thecureforzits 6y ago

States willing to call a constitutional convention almost have the numbers to do it at this point and they lean hard right. https://conventionofstates.com/ https://conventionofstates.com/

visarga 6y ago

> You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). 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.

dragonwriter 6y ago

> 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. 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.