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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

by 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).
  - zachrose 6y ago
    > The US incarceration rate is at a 20 year low and keeps falling. Technically true, but man oh man do we have a ways to go before the war on drugs is mitigated[1]. Based on the trend of the last ~10 years, we're due to reach 1980 levels of prison population in the 23rd century[2]. [1] https://commons.wikimedia.org/wiki/File:U.S._incarceration_rates_1925_onwards.png https://commons.wikimedia.org/wiki/File:U.S._incarceration_r... [2] https://www.sentencingproject.org/publications/u-s-prison-population-trends-massive-buildup-and-modest-decline/ https://www.sentencingproject.org/publications/u-s-prison-po... (eye-balling Table 1)
  - downrightmike 6y ago
    So you're saying we have vacancy. Even better.
  - srtjstjsj 6y ago
    That's an misleading stat. Incarceration trends are highly variable by state. https://www.sentencingproject.org/the-facts/#detail?state1Option=Texas&state2Option=Hawaii https://www.sentencingproject.org/the-facts/#detail?state1Op...
    - vinay427 6y ago
      The overall incarceration rate wouldn't be misleading with this information, although the correlation they draw with privatization of prisons in some states very well could be. Is there a specific pair of states you would refer to here?
- ardy42 6y ago
  > We can and do love building prisons. Huh? What's that supposed to mean in this context?
  - downrightmike 6y ago
    If anyone is saying that we shouldn't throw a bunch of criminals in jail after they do the crime, because we can't just do that, we can.
DennisP 6y ago
Seems like the courts could make a distinction between "ok this was unclear" and "this was obvious, egregious and deserving of penalties." And while throwing Congress in jail seems unworkable, disqualifying members from reelection in egregious cases might be doable (though of course it would require a constitutional amendment).
- ardy42 6y ago
  > And while throwing Congress in jail seems unworkable, disqualifying members from reelection in egregious cases might be doable (though of course it would require a constitutional amendment). I don't think so. Do you really want the executive and the courts be able to disqualify representatives, essentially for political reasons, because they proposed legislation or supported legislation that a president has signed into law?
- xxpor 6y ago
  This is essentially the qualified immunity debate. SCOTUS has decided that unless the government defendant did something that SCOTUS in the past has specifically ruled is unconstitutional, you don't get to win a ruling against them. Where specifically is defined exceptionally narrowly.
  - patmorgan23 6y ago
    That's not actually whay SCOTUS did when it created qualified immunity (which it has the authority to do, but congress also has the authority to overturn that). What you described is how it has evolved in the circuit courts.
    - xxpor 6y ago
      I agree that's not the original "plan" (or whatever you want to call it), but AFAIK SCOTUS has pretty much said the circuit courts are doing the right thing there.
- srtjstjsj 6y ago
  > election Congress was elected. If they are doing a bad job, the voters can recall them. There's no need for lower officials to deal with them. If the majority of the voters are wrong, then your "democratic nations of laws" is dead.
ColanR 6y ago
> because there's no higher authority to appeal to for enforcement Technically, that higher authority is the people themselves. Bear in mind that the Constitution was written in a context where the governed people successfully held their government accountable at the business end of their hunting rifles.
- benrbray 6y ago
  Violence is a last resort, but it shouldn't be the ONLY resort when government violates our rights.
  - ColanR 6y ago
    Absolutely agreed that it is a very last resort. The declaration of independence actually does a good job of outlining just how much of a last resort the american revolution actually was.
- krapp 6y ago
  >Bear in mind that the Constitution was written in a context where the governed people successfully held their government accountable at the business end of their hunting rifles. No they didn't, look up Shay's Rebellion and the Whiskey Rebellion as examples. The US government has never been successfully "held accountable" at gunpoint.
  - ColanR 6y ago
    I was referring to the American Revolution. The 'holding accountable' was the revocation of Britain's authority over the colonies.
    - joshuamorton 6y ago
      In what way was the British Government "held accountable"? British leaders in Britain weren't held accountable, and many of the eventual founders were high level bureaucrats in the British government of the American colonies.
heimatau 6y ago
> 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. Actually, it's nonsense to think anything to the contrary. Either our founding document matters as the backbone of our Laws or it doesn't. Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract. > The Constitution, for the most part, just states norms and procedures that the the country and government have decided to follow voluntarily, not because some authority will punish it if it doesn't. It's not a document of 'norms' and 'procedures'. It's a structure of how our Republic is built. Either we have a structure or we undermine it. That's really it, full stop. Amendments are apart of that structure to build or take away for what that structure is to be. Not 'ought to be' not 'suggested' not 'maybe if you'd like to follow', it's a mutually agreed upon Law. [edited: minor edits for added clarity]
- xxpor 6y ago
  >Either our founding document matters as the backbone of our Laws or it doesn't. Nitpick, the constitution isn't a founding document. There was that whole Articles of Confederation thing. Congress isn't the final authority of if laws are constitutional or not. The courts are. Congress and the Supreme Court commonly disagree on the constitutionality of laws. What you're proposing is essentially a oligarchy lead by the Supreme Court. >Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract. There is no social contract based on the constitution. It's just that enough people agree that it has value, so it does. That's not a social contract. No regular people voted on the Constitution. You don't have the ability to reject it if you don't agree with it.
  - ColanR 6y ago
    > No regular people voted on the Constitution. Nitpick. The people who were sent as representatives from each state to help write and ratify the constitution were chosen by the people of that state. So technically, through representative democracy, the regular people did agree to the constitution because their representatives agreed on it.
kebman 6y ago
This is an interesting concept. In Norway, the parliament cannot pass contradictory laws, for instance, for the simple reason this tenet: "All power must be gathered in this hall". So in essence, Stortinget (our parliament) cannot pass laws that give power away, for instance. Doing so would be unconstitutional, also because our constitution explicitly states that power shall not be given away. Yet it has happened, but in those instances the laws is either handily disregarded at opportune times, or it's left to the suppreme court to decide the outcome where there are offended parties. And since they follow the constitution, they always follow the above tenet.
- sitkack 6y ago
  Congress tries and mostly succeeds in doing this all the time. https://clintonwhitehouse2.archives.gov/Initiatives/FastTrack/what.html https://clintonwhitehouse2.archives.gov/Initiatives/FastTrac... https://en.wikipedia.org/wiki/Fast_track_(trade) https://en.wikipedia.org/wiki/Fast_track_(trade) When was the last time the us congress actually declared war (their job)?
zucker42 6y ago
> unconstitutional ex-post-facto punishment This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition. Furthermore, prohibiting ex-post-facto laws means you can't pass a law which criminalizes actions in the past. But courts don't pass laws, they interpret them. There's plenty of cases where courts interpret a law in a new way because of new situation. For example, I'm sure Clayton County is going to face applicable penalties under Title VII after Bostock v. Clayton County (recent LGBT discrimination ruling).
- xxpor 6y ago
  >But courts don't pass laws, they interpret them. This is a common misconception. Courts don't pass statutes, but they certainly create law. Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court. This is the essential difference between a common law and civil law system. There are still rulings in the US that cite old English cases from before 1776 as the basis of the law in this country.
  - r00fus 6y ago
    Only in a country with jurisprudence. Not all countries hold that court decisions require following court decisions to respect previous decisions (ie, legal precedent).
    - xxpor 6y ago
      See the common vs civil law comment at the end. No idea how the other major legal systems like sharia work though.
      - r00fus 6y ago
        Jurisprudence isn't even uniform through Europe. IIRC, in France they don't consider precedent nearly as much as the US.
    - 6y ago
sitkack 6y ago
Whaaaa?! > because there's no higher authority to appeal to for enforcement. Then we do not live in a democracy with a rule of law. Why have the constitution at all? Barring weasel lawyering and issues around standing. The very idea that you would claim these violations are not punishable means that they will continue to occur. I am having a hard time fathoming how you take this stance at all.
- gwright 6y ago
  > Then we do not live in a democracy with a rule of law. Why have the constitution at all? The concept of checks and balances is an attempt to mitigate this problem. The "higher authority" is the other branches of government. But even that only goes so far. Ultimately the entire scheme only works because individual humans agree to abide by the implicit social contract to live within the system of laws. To the extent that large number of people come to not feel bound by the social contract, well at some point you have some sort of haphazard and generally unjust system, insurrection, or even civil war. I'm tempted to make some comments about recent events in the US, but suffice to say there are definitely some people who seem to think the current social contract isn't worth saving. And I'm not just talking about those taking action in the streets. There are plenty of people in elected positions of power who are behaving in that way also. It would be nice if those who feel like it isn't worth working within the system to improve things had any sort of an alternative. Unfortunately it is orders of magnitude easier to dismantle and destroy than it is to create and build. I hope we don't have to learn that lesson the hard way.
  - raxxorrax 6y ago
    You can dismantle the surveillance powers of the NSA without dismantling the whole country. If not, then those people might actually be correct.
    - gwright 6y ago
      > If not, then those people might actually be correct. This doesn't seem reasonable to me. The amount of misery and injustice that would accompany any sort of dissolution of civil society would be enormous and with no path towards something better. To the extent that some people who think the current system is broken beyond repair make an effort to explain what they would do different it basically amounts to "everything will be better if we just give all the power to my preferred group of people", which sounds a lot like fascism to me. The expanding scope/power of national government (all branches) is a huge part of our problem. Accelerating that trend but with the "right people" in place is not an attractive solution from my point of view. It doesn't matter to me if the "right people" have a (D) or (R) after their name, expansive national government is a bad idea.
lettergram 6y ago
There’s a reason the founding fathers regularly stated things like > the Tree of Liberty Must Be Refreshed with the Blood of Patriots and Tyrants - Thomas Jefferson It’s because the final authority is the people of the country. The constitution is the social contract the government and people agreed to. If broken, the people have the obligations to correct it. That’s not to say some kind of rebellion necessarily. We have the justice system, Congress, senate, etc. when all that fails... that’s why we have the first, second, fourth, etc amendments. It makes it hard to enforce your will all at once when the people have those protections. Each would have to be slowly taken away to effectively take control .
AaronFriel 6y ago
I don't think it would be unconstitutional ex-post-facto. Obergefell v. Hodges didn't define sex discrimination in marriage certificates unconstitutional after a certain date. It was always unconstitutional, and was recognized as such in their ruling. And yes, I would like to see, actually, qualified immunity removed and governments held liable for rights violations. Perhaps not prison time for the clerks - who were simply "following orders", as horrendous a saying as that is - but some liability and remedy for the countless people harmed. How different a world would it be if as a result of Brown v. Board of Education was that black families were financially compensated for sixty years of segregation and for centuries before that denied the right to an education? How different a world would it be if as a result of Shelley v. Kraemer, every black person who was told they couldn't buy a home because of a bank was compensated? How different a world would it be if as a result of Whole Women's Health v. Hellerstedt, women who sought an abortion and were denied or unable due to unconstitutional restrictions on clinics were compensated by the equivalent of child support from the state? I think that would be a better world. No, I don't think the clerks, the school boards, or health commission members in Texas should go to jail. But I do think that perhaps, just perhaps, we might live in a more just world today if there were long-term consequences for denying someone their rights. And maybe, just maybe, we can then start to ask whether or not "just following orders" is a good way to justify one's individual place in society. But before we go down the slippery slope of questioning whether evil can be banal - it can - we should ask whether or not its prior victims should be entitled to a remedy too.
- ByteJockey 6y ago
  I imagine that the rights you're talking about would never have been recognized in such a world. Maybe I'm just being cynical, but it was hard enough to get those rights recognized in the realm of argument, I imagine putting a giant pile of money on the other side would make it functionally impossible to change anything. Putting financial penalties on admitting your mistakes doesn't usually make people more compassionate. If it did, the world of corporate law would be a utopia.
  - AaronFriel 6y ago
    I don't think individuals involved in the government should always be liable, it should be the government itself in these institutional cases. If a police department, a county clerk, or a school repeatedly violates someone's rights, I don't think it's fair to say "Well, we 'fixed' the problem for anyone who comes after those folks." For one thing, due to qualified immunity with police brutality the problem never actually goes away. No one is every held responsible. For another, when cases actually can go all the way up to a court of appeals or the United States Supreme Court, the remedy is usually "don't do that". There's a pernicious form of cruelty that many of the same people politically aligned with denying people rights also believe that equality of opportunity, not equality of outcome, is the best way to organize society. Yet, when it's recognized that opportunities have been systemically denied and stolen from certain classes of people, those people offer no recompense. We can and should change that. If we really, genuinely do believe in equality of opportunity then reparations for civil rights violations are necessary. We cannot have equality of opportunity when the playing field has been tilted by centuries of generational and institutional harms.
badrabbit 6y ago
With the exception of the president, there is always an authority that can arrest/punish an authority (including the military). Incorrect interpretation of the law is not what I am talking about, intentional violation is. The clerks that denied marriage licenses before the ruling did not violate the law and after the ruling yes, they did act on behalf of government (not that I am expressing my view on the matter). What happened was one clerk was jailed indefinitetly (human rights violation!) Until she complied instead of measured punishment and removal from office. Regarding the law makers, the law maker that introduced it should be punished if it can be proven he violated the bill of rights on purpose (intent). You can't say the law is not clear enough to punish people. You're essentially saying the law is a guideline open to free interpretation. If I kill someone with a gun, is it murder? It depends right, even in such a simple scenario the law is not clear cut, that's why you have judges. A cop on duty can get away with a shooting if he feared for his life, in certain states you can proactively stand your ground and kill intruders. No matter what, judges interpret law and lack of clarity is fine. The crime is violating constitutional law while acting on behalf of government. Intentional ignorance of the bill of rights or malicious violation of the same must be proven in court to find a person guilty.
hammock 6y ago
> 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. Well.. you could depose them. Or declare independence from them. That has happened a few times in history. The Constitution is a social contract. The people say "we'll give you (government) these abc powers, if you promise to use them this xyz way." When that contract is broken, no one gets thrown in jail - its rather more severe. The legitimacy of the government is called into question, or dissolved.
- kelnos 6y ago
  In an ideal world, yes. In our actual world, the Constitution was ratified by a very small number of representatives from the population. And those representatives were drawn from and selected by white male landowners who owned some minimum threshold of land. IIRC that counted for less than 10% of the people living in the proto-US.
  - hammock 6y ago
    So your solution is to throw Congress in jail? Or do you have another proposal?
    - kelnos 6y ago
      Huh? How are you reading that in my comment? I explicitly think that throwing Congress in jail would be silly, and actually unjust. But I didn't at all address that. I was merely pointing out that the US's "government for the people by the people" was laughably not at all that back when it was founded. "The people" didn't give the government abc powers; a single-digit percentage of them did. Beyond that, suggesting that an armed insurrection could ever be successful at deposing the US government... that's a silly fantasy.
indigochill 6y ago
> what are you going to do, throw Congress in jail? My understanding is at the time it was written, it was expected that a government would be balanced by the potential military might of an armed rebellion should the government act so against the interests of the populace as to inspire that response (after all, starved and freezing American rebels had just beaten one of the mightiest empires in history, so they had set historical precedent). I don't think the founders foresaw a future in which the government's military might so far surpassed the public's as to make such a rebellion unthinkable.
Proziam 6y ago
> 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 only nonsense is that we haven't done exactly that. If someone in power betrays the public trust they should be punished. The punishment ought to be severe so there is no doubt about the stakes at play. > That might actually be unconstitutional ex-post-facto punishment. We have members of our government who have taken oaths to other nations, and that have then voted to provide those other nations with aid and support. Similarly, we have members of our government who provide legal sanctuary for those who defy the laws of the land. And, regardless of your political beliefs, both parties currently in power have voted overwhelmingly in favor of war over the past several decades. > Article III, section 3 of the U.S. Constitution: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."
- sudosysgen 6y ago
  The US officially has no enemies as of yet.
  - Proziam 6y ago
    If a senator woke up tomorrow and wanted to help a martian terror cell that nobody knew existed, they would still be assisting an enemy of the state. It would still be treason, and I doubt that interpretation would be a topic of debate. There are also groups who openly consider us their enemy and take action to harm the United States, even if we don't 'officially' recognize them. Some of these groups are nation-states, others are religious groups, and others and driven by [0]other ideologies. [0] http://www.ecjones.org/1963_Communist_Goals.pdf http://www.ecjones.org/1963_Communist_Goals.pdf
    - sudosysgen 6y ago
      A communist wouldn't accept that installing communism in the US is "waging war against the US", and legal precedence in the US is that its legal to be a communist, so I'm not sure what you meant by that. In fact, even supporting the Soviet Union would not be treason. Enemies, in this context, is very narrowly defined as an entity the US has declared war against. À senator helping a Martian terror state, as long as they did not engage in violence against the US, wouldn't be convicted of treason. https://www.nbcnews.com/think/opinion/americans-have-forgotten-what-treason-actually-means-how-it-can-ncna848651 https://www.nbcnews.com/think/opinion/americans-have-forgott...
Erlich_Bachman 6y ago
> and Congress still makes a law, what are you going to do, throw Congress in jail? Yes that's exactly what you should do. That's not nonsense. That's how a non-corrupt state should work. At the very least the law itself should be nullified.

by ardy42 6y ago

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).
- zachrose 6y ago
  > The US incarceration rate is at a 20 year low and keeps falling. Technically true, but man oh man do we have a ways to go before the war on drugs is mitigated[1]. Based on the trend of the last ~10 years, we're due to reach 1980 levels of prison population in the 23rd century[2]. [1] https://commons.wikimedia.org/wiki/File:U.S._incarceration_rates_1925_onwards.png https://commons.wikimedia.org/wiki/File:U.S._incarceration_r... [2] https://www.sentencingproject.org/publications/u-s-prison-population-trends-massive-buildup-and-modest-decline/ https://www.sentencingproject.org/publications/u-s-prison-po... (eye-balling Table 1)
- downrightmike 6y ago
  So you're saying we have vacancy. Even better.
- srtjstjsj 6y ago
  That's an misleading stat. Incarceration trends are highly variable by state. https://www.sentencingproject.org/the-facts/#detail?state1Option=Texas&state2Option=Hawaii https://www.sentencingproject.org/the-facts/#detail?state1Op...
  - vinay427 6y ago
    The overall incarceration rate wouldn't be misleading with this information, although the correlation they draw with privatization of prisons in some states very well could be. Is there a specific pair of states you would refer to here?
ardy42 6y ago
> We can and do love building prisons. Huh? What's that supposed to mean in this context?
- downrightmike 6y ago
  If anyone is saying that we shouldn't throw a bunch of criminals in jail after they do the crime, because we can't just do that, we can.

DennisP 6y ago

Seems like the courts could make a distinction between "ok this was unclear" and "this was obvious, egregious and deserving of penalties." And while throwing Congress in jail seems unworkable, disqualifying members from reelection in egregious cases might be doable (though of course it would require a constitutional amendment).

ardy42 6y ago
> And while throwing Congress in jail seems unworkable, disqualifying members from reelection in egregious cases might be doable (though of course it would require a constitutional amendment). I don't think so. Do you really want the executive and the courts be able to disqualify representatives, essentially for political reasons, because they proposed legislation or supported legislation that a president has signed into law?
xxpor 6y ago
This is essentially the qualified immunity debate. SCOTUS has decided that unless the government defendant did something that SCOTUS in the past has specifically ruled is unconstitutional, you don't get to win a ruling against them. Where specifically is defined exceptionally narrowly.
- patmorgan23 6y ago
  That's not actually whay SCOTUS did when it created qualified immunity (which it has the authority to do, but congress also has the authority to overturn that). What you described is how it has evolved in the circuit courts.
  - xxpor 6y ago
    I agree that's not the original "plan" (or whatever you want to call it), but AFAIK SCOTUS has pretty much said the circuit courts are doing the right thing there.
srtjstjsj 6y ago
> election Congress was elected. If they are doing a bad job, the voters can recall them. There's no need for lower officials to deal with them. If the majority of the voters are wrong, then your "democratic nations of laws" is dead.

ColanR 6y ago

> because there's no higher authority to appeal to for enforcement Technically, that higher authority is the people themselves. Bear in mind that the Constitution was written in a context where the governed people successfully held their government accountable at the business end of their hunting rifles.

benrbray 6y ago
Violence is a last resort, but it shouldn't be the ONLY resort when government violates our rights.
- ColanR 6y ago
  Absolutely agreed that it is a very last resort. The declaration of independence actually does a good job of outlining just how much of a last resort the american revolution actually was.
krapp 6y ago
>Bear in mind that the Constitution was written in a context where the governed people successfully held their government accountable at the business end of their hunting rifles. No they didn't, look up Shay's Rebellion and the Whiskey Rebellion as examples. The US government has never been successfully "held accountable" at gunpoint.
- ColanR 6y ago
  I was referring to the American Revolution. The 'holding accountable' was the revocation of Britain's authority over the colonies.
  - joshuamorton 6y ago
    In what way was the British Government "held accountable"? British leaders in Britain weren't held accountable, and many of the eventual founders were high level bureaucrats in the British government of the American colonies.

heimatau 6y ago

> 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. Actually, it's nonsense to think anything to the contrary. Either our founding document matters as the backbone of our Laws or it doesn't. Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract. > The Constitution, for the most part, just states norms and procedures that the the country and government have decided to follow voluntarily, not because some authority will punish it if it doesn't. It's not a document of 'norms' and 'procedures'. It's a structure of how our Republic is built. Either we have a structure or we undermine it. That's really it, full stop. Amendments are apart of that structure to build or take away for what that structure is to be. Not 'ought to be' not 'suggested' not 'maybe if you'd like to follow', it's a mutually agreed upon Law. [edited: minor edits for added clarity]

xxpor 6y ago
>Either our founding document matters as the backbone of our Laws or it doesn't. Nitpick, the constitution isn't a founding document. There was that whole Articles of Confederation thing. Congress isn't the final authority of if laws are constitutional or not. The courts are. Congress and the Supreme Court commonly disagree on the constitutionality of laws. What you're proposing is essentially a oligarchy lead by the Supreme Court. >Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract. There is no social contract based on the constitution. It's just that enough people agree that it has value, so it does. That's not a social contract. No regular people voted on the Constitution. You don't have the ability to reject it if you don't agree with it.
- ColanR 6y ago
  > No regular people voted on the Constitution. Nitpick. The people who were sent as representatives from each state to help write and ratify the constitution were chosen by the people of that state. So technically, through representative democracy, the regular people did agree to the constitution because their representatives agreed on it.

kebman 6y ago

This is an interesting concept. In Norway, the parliament cannot pass contradictory laws, for instance, for the simple reason this tenet: "All power must be gathered in this hall". So in essence, Stortinget (our parliament) cannot pass laws that give power away, for instance. Doing so would be unconstitutional, also because our constitution explicitly states that power shall not be given away. Yet it has happened, but in those instances the laws is either handily disregarded at opportune times, or it's left to the suppreme court to decide the outcome where there are offended parties. And since they follow the constitution, they always follow the above tenet.

sitkack 6y ago
Congress tries and mostly succeeds in doing this all the time. https://clintonwhitehouse2.archives.gov/Initiatives/FastTrack/what.html https://clintonwhitehouse2.archives.gov/Initiatives/FastTrac... https://en.wikipedia.org/wiki/Fast_track_(trade) https://en.wikipedia.org/wiki/Fast_track_(trade) When was the last time the us congress actually declared war (their job)?

zucker42 6y ago

> unconstitutional ex-post-facto punishment This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition. Furthermore, prohibiting ex-post-facto laws means you can't pass a law which criminalizes actions in the past. But courts don't pass laws, they interpret them. There's plenty of cases where courts interpret a law in a new way because of new situation. For example, I'm sure Clayton County is going to face applicable penalties under Title VII after Bostock v. Clayton County (recent LGBT discrimination ruling).

xxpor 6y ago
>But courts don't pass laws, they interpret them. This is a common misconception. Courts don't pass statutes, but they certainly create law. Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court. This is the essential difference between a common law and civil law system. There are still rulings in the US that cite old English cases from before 1776 as the basis of the law in this country.
- r00fus 6y ago
  Only in a country with jurisprudence. Not all countries hold that court decisions require following court decisions to respect previous decisions (ie, legal precedent).
  - xxpor 6y ago
    See the common vs civil law comment at the end. No idea how the other major legal systems like sharia work though.
    - r00fus 6y ago
      Jurisprudence isn't even uniform through Europe. IIRC, in France they don't consider precedent nearly as much as the US.
  - 6y ago

sitkack 6y ago

Whaaaa?! > because there's no higher authority to appeal to for enforcement. Then we do not live in a democracy with a rule of law. Why have the constitution at all? Barring weasel lawyering and issues around standing. The very idea that you would claim these violations are not punishable means that they will continue to occur. I am having a hard time fathoming how you take this stance at all.

gwright 6y ago
> Then we do not live in a democracy with a rule of law. Why have the constitution at all? The concept of checks and balances is an attempt to mitigate this problem. The "higher authority" is the other branches of government. But even that only goes so far. Ultimately the entire scheme only works because individual humans agree to abide by the implicit social contract to live within the system of laws. To the extent that large number of people come to not feel bound by the social contract, well at some point you have some sort of haphazard and generally unjust system, insurrection, or even civil war. I'm tempted to make some comments about recent events in the US, but suffice to say there are definitely some people who seem to think the current social contract isn't worth saving. And I'm not just talking about those taking action in the streets. There are plenty of people in elected positions of power who are behaving in that way also. It would be nice if those who feel like it isn't worth working within the system to improve things had any sort of an alternative. Unfortunately it is orders of magnitude easier to dismantle and destroy than it is to create and build. I hope we don't have to learn that lesson the hard way.
- raxxorrax 6y ago
  You can dismantle the surveillance powers of the NSA without dismantling the whole country. If not, then those people might actually be correct.
  - gwright 6y ago
    > If not, then those people might actually be correct. This doesn't seem reasonable to me. The amount of misery and injustice that would accompany any sort of dissolution of civil society would be enormous and with no path towards something better. To the extent that some people who think the current system is broken beyond repair make an effort to explain what they would do different it basically amounts to "everything will be better if we just give all the power to my preferred group of people", which sounds a lot like fascism to me. The expanding scope/power of national government (all branches) is a huge part of our problem. Accelerating that trend but with the "right people" in place is not an attractive solution from my point of view. It doesn't matter to me if the "right people" have a (D) or (R) after their name, expansive national government is a bad idea.

lettergram 6y ago

There’s a reason the founding fathers regularly stated things like > the Tree of Liberty Must Be Refreshed with the Blood of Patriots and Tyrants - Thomas Jefferson It’s because the final authority is the people of the country. The constitution is the social contract the government and people agreed to. If broken, the people have the obligations to correct it. That’s not to say some kind of rebellion necessarily. We have the justice system, Congress, senate, etc. when all that fails... that’s why we have the first, second, fourth, etc amendments. It makes it hard to enforce your will all at once when the people have those protections. Each would have to be slowly taken away to effectively take control .

AaronFriel 6y ago

I don't think it would be unconstitutional ex-post-facto. Obergefell v. Hodges didn't define sex discrimination in marriage certificates unconstitutional after a certain date. It was always unconstitutional, and was recognized as such in their ruling. And yes, I would like to see, actually, qualified immunity removed and governments held liable for rights violations. Perhaps not prison time for the clerks - who were simply "following orders", as horrendous a saying as that is - but some liability and remedy for the countless people harmed. How different a world would it be if as a result of Brown v. Board of Education was that black families were financially compensated for sixty years of segregation and for centuries before that denied the right to an education? How different a world would it be if as a result of Shelley v. Kraemer, every black person who was told they couldn't buy a home because of a bank was compensated? How different a world would it be if as a result of Whole Women's Health v. Hellerstedt, women who sought an abortion and were denied or unable due to unconstitutional restrictions on clinics were compensated by the equivalent of child support from the state? I think that would be a better world. No, I don't think the clerks, the school boards, or health commission members in Texas should go to jail. But I do think that perhaps, just perhaps, we might live in a more just world today if there were long-term consequences for denying someone their rights. And maybe, just maybe, we can then start to ask whether or not "just following orders" is a good way to justify one's individual place in society. But before we go down the slippery slope of questioning whether evil can be banal - it can - we should ask whether or not its prior victims should be entitled to a remedy too.

ByteJockey 6y ago
I imagine that the rights you're talking about would never have been recognized in such a world. Maybe I'm just being cynical, but it was hard enough to get those rights recognized in the realm of argument, I imagine putting a giant pile of money on the other side would make it functionally impossible to change anything. Putting financial penalties on admitting your mistakes doesn't usually make people more compassionate. If it did, the world of corporate law would be a utopia.
- AaronFriel 6y ago
  I don't think individuals involved in the government should always be liable, it should be the government itself in these institutional cases. If a police department, a county clerk, or a school repeatedly violates someone's rights, I don't think it's fair to say "Well, we 'fixed' the problem for anyone who comes after those folks." For one thing, due to qualified immunity with police brutality the problem never actually goes away. No one is every held responsible. For another, when cases actually can go all the way up to a court of appeals or the United States Supreme Court, the remedy is usually "don't do that". There's a pernicious form of cruelty that many of the same people politically aligned with denying people rights also believe that equality of opportunity, not equality of outcome, is the best way to organize society. Yet, when it's recognized that opportunities have been systemically denied and stolen from certain classes of people, those people offer no recompense. We can and should change that. If we really, genuinely do believe in equality of opportunity then reparations for civil rights violations are necessary. We cannot have equality of opportunity when the playing field has been tilted by centuries of generational and institutional harms.

badrabbit 6y ago

With the exception of the president, there is always an authority that can arrest/punish an authority (including the military). Incorrect interpretation of the law is not what I am talking about, intentional violation is. The clerks that denied marriage licenses before the ruling did not violate the law and after the ruling yes, they did act on behalf of government (not that I am expressing my view on the matter). What happened was one clerk was jailed indefinitetly (human rights violation!) Until she complied instead of measured punishment and removal from office. Regarding the law makers, the law maker that introduced it should be punished if it can be proven he violated the bill of rights on purpose (intent). You can't say the law is not clear enough to punish people. You're essentially saying the law is a guideline open to free interpretation. If I kill someone with a gun, is it murder? It depends right, even in such a simple scenario the law is not clear cut, that's why you have judges. A cop on duty can get away with a shooting if he feared for his life, in certain states you can proactively stand your ground and kill intruders. No matter what, judges interpret law and lack of clarity is fine. The crime is violating constitutional law while acting on behalf of government. Intentional ignorance of the bill of rights or malicious violation of the same must be proven in court to find a person guilty.

hammock 6y ago

> 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. Well.. you could depose them. Or declare independence from them. That has happened a few times in history. The Constitution is a social contract. The people say "we'll give you (government) these abc powers, if you promise to use them this xyz way." When that contract is broken, no one gets thrown in jail - its rather more severe. The legitimacy of the government is called into question, or dissolved.

kelnos 6y ago
In an ideal world, yes. In our actual world, the Constitution was ratified by a very small number of representatives from the population. And those representatives were drawn from and selected by white male landowners who owned some minimum threshold of land. IIRC that counted for less than 10% of the people living in the proto-US.
- hammock 6y ago
  So your solution is to throw Congress in jail? Or do you have another proposal?
  - kelnos 6y ago
    Huh? How are you reading that in my comment? I explicitly think that throwing Congress in jail would be silly, and actually unjust. But I didn't at all address that. I was merely pointing out that the US's "government for the people by the people" was laughably not at all that back when it was founded. "The people" didn't give the government abc powers; a single-digit percentage of them did. Beyond that, suggesting that an armed insurrection could ever be successful at deposing the US government... that's a silly fantasy.

indigochill 6y ago

> what are you going to do, throw Congress in jail? My understanding is at the time it was written, it was expected that a government would be balanced by the potential military might of an armed rebellion should the government act so against the interests of the populace as to inspire that response (after all, starved and freezing American rebels had just beaten one of the mightiest empires in history, so they had set historical precedent). I don't think the founders foresaw a future in which the government's military might so far surpassed the public's as to make such a rebellion unthinkable.

Proziam 6y ago

> 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 only nonsense is that we haven't done exactly that. If someone in power betrays the public trust they should be punished. The punishment ought to be severe so there is no doubt about the stakes at play. > That might actually be unconstitutional ex-post-facto punishment. We have members of our government who have taken oaths to other nations, and that have then voted to provide those other nations with aid and support. Similarly, we have members of our government who provide legal sanctuary for those who defy the laws of the land. And, regardless of your political beliefs, both parties currently in power have voted overwhelmingly in favor of war over the past several decades. > Article III, section 3 of the U.S. Constitution: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

sudosysgen 6y ago
The US officially has no enemies as of yet.
- Proziam 6y ago
  If a senator woke up tomorrow and wanted to help a martian terror cell that nobody knew existed, they would still be assisting an enemy of the state. It would still be treason, and I doubt that interpretation would be a topic of debate. There are also groups who openly consider us their enemy and take action to harm the United States, even if we don't 'officially' recognize them. Some of these groups are nation-states, others are religious groups, and others and driven by [0]other ideologies. [0] http://www.ecjones.org/1963_Communist_Goals.pdf http://www.ecjones.org/1963_Communist_Goals.pdf
  - sudosysgen 6y ago
    A communist wouldn't accept that installing communism in the US is "waging war against the US", and legal precedence in the US is that its legal to be a communist, so I'm not sure what you meant by that. In fact, even supporting the Soviet Union would not be treason. Enemies, in this context, is very narrowly defined as an entity the US has declared war against. À senator helping a Martian terror state, as long as they did not engage in violence against the US, wouldn't be convicted of treason. https://www.nbcnews.com/think/opinion/americans-have-forgotten-what-treason-actually-means-how-it-can-ncna848651 https://www.nbcnews.com/think/opinion/americans-have-forgott...

Erlich_Bachman 6y ago

> and Congress still makes a law, what are you going to do, throw Congress in jail? Yes that's exactly what you should do. That's not nonsense. That's how a non-corrupt state should work. At the very least the law itself should be nullified.