8 ms·

> but they don’t feel the same way about public benefits or rights associated with other technology that is being replaced When the government creates a law wi

by derefr 3y ago

> but they don’t feel the same way about public benefits or rights associated with other technology that is being replaced When the government creates a law within recorded history — something like a wiretapping law — then the spirit of the law is well-known at time of creation. Usually, that "spirit" is that it's created to explicitly grant a capability to the government to do a thing for the benefit of the public under a certain circumstance. So if technology changes, the spirit that the original law was defined under is expected to be upheld by the court when interpreting the law to suit cases outside its original scope. The problem with "legacy" common law — things like "being able to transact anonymously using cash" — is that there is no clear "institutional memory" of the spirit that created the law. The people who invented "using gold coins as a common exchange for barter" weren't thinking about anonymity — and so it's not clear whether anonymity is a necessary or desirable part of the spirit of cash transactions, something the public would desire to be preserved in a replacement system; or whether it's just an "implementation detail" of the way cash happened to need to work given technology, something that would make no sense to port over to the new system.

23B1 3y ago
This is why the Federalist Papers are some of the most important documents when understanding the intent of the Constitution and Bill of Rights – and simultaneously the least read! I'm not saying that case law isn't also an important aspect of the 'law' and that the constitution shouldn't be amended – I'm not really a hardcore 'originalist' – I just mean that any time a SCOTUS ruling comes out, it's clear that in the public square discussion, nobody has read these very important contextual documents and it is maddening.
- kmbfjr 3y ago
  What a wordy way to admit to dismissing anyone’s argument to which you do not agree because “they have not read the…”.
  - 23B1 3y ago
    I agree. Arguments from ignorance should be dismissed.
- derefr 3y ago
  There seems to be a function missing from government. All governments, AFAICT. Legislators change the law (including, rarely, the constitution) — effectively by applying a hierarchy of "countermanding orders" — to suit the changing interests of the public. Courts interpret the law, but only downstream of legislation. The executive can make regulation and executive orders, but only in agreement with the law. But at the founding of any given country, something else usually happens: certain rights and laws that are already recognized intuitively become enshrined into the country's constitution. Things are written down into law not as a representation of a shift in public sentiment, but as a recognition of existing sentiment, and the desirability to formalize that sentiment as law to protect it from encroachment by legislation. Usually, this is done in the form of "representative anarchy": the people who establish a country are the people everyone rallied behind to overthrow the previous country; and because of this, they have very good knowledge of what rights their constituents were demanding that the previous government wasn't giving them. There's no trivial way to map this "representative anarchy" process of self-evident-rights information-gathering into an equivalent process that would occur within an established continuous government. But that doesn't mean it's impossible. For example, there could be a government department charged with 1. doing a kind of embedded journalism to figure out what issues "the people" are beginning to care about, that the law's stance on has no clear basis, because those issues were irrelevant when the constitution was enshrined; and then 2. coming up with referrendum-like polls to gather data on said public sentiment; where if the polls indicate a need, then at that point 3. the data will lead to a mandate for a constitutional amendment enshrining the public's desires to be created and put into force, which stands until this has successfully occurred; where 4. it is then up to the legislature and the supreme court to work together to draft the amendment; but 5. the ability to ratify the amendment is not in the hands of the legislature or the courts, but instead, this department will assemble a federal grand jury with participants from all states, which has a veto over each draft, and a congressional-subpoena-like ability to summon and retain the services of arbitrary legal experts to interpret the draft. (In est, this is trying to get as close as possible to having the public write the amendment themselves, with the legislature+courts being forced to "do the hard work" but not having any power over the result.) But exactly how such a system would work isn't really my point; my point is that there is currently no such system, and that this is perhaps a problem. In fact, it is perhaps the problem — the problem that leads to governments founded with public support increasingly failing to address the interests of the people over time; and so, to governments being overthrown and new countries being founded.
- rootusrootus 3y ago
  For completeness, read the anti-federalist papers too. The collective opinion of Hamilton, Madison, and Jay is just one point of view.
  - bryanrasmussen 3y ago
    I guess I don't get why the arguments against the Constitution of the time would be useful for "understanding the intent of the Constitution and Bill of Rights"?
    - turmacar 3y ago
      Because they are directly responsible for the Bill of Rights because they felt the Constitution didn't provide enough protection/clarity in some cases.
    - walterbell 3y ago
      For the same reason patch reviews can lead to code improvement.
    - 8note 3y ago
      The thing that passed is always a compromise between opposing views Only reading the federalist papers gives you a stilted opinion of what caused things to be the way they are
    - jean_lannes 3y ago
      The Bill of Rights came about largely as a product of anti-federalist agitation. Many prominent federalists felt that a Bill of Rights would be redundant; in federalist 84, Hamilton writes the following: > There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. [1] [1] https://avalon.law.yale.edu/18th_century/fed84.asp https://avalon.law.yale.edu/18th_century/fed84.asp
- pierat 3y ago
  The Federalist papers are the equivalent of a Medium blog post. And I will treat them as such. Edit: Evidently I've pissed off enough people who drink the red-white-blue kool-aid. -3 at the moment. These newspaper publishings were expressly for the solidification of power at the federal level, and the weakening of the states. And only look closer at what the "federal" powers were about, and it was all about "secur(ing) the existence of (their) people and a future for white children." (cite: 14 words) Hamilton/Madison/Jay and others knew if a strong federal law reigned supreme, his and other founders' slaves and their current wealth would be greatly solidified. And right he was. And all those slaves also gave 3/5'th a vote per human they enslaved. While many of you say it was for "selfless reasons", my only response is a great big belly laugh. So perhaps, I was wrong calling these an equivalent of a Medium blog post. No, instead they'd fit right in on the Daily Stormer or Stormfront (2 neonazi publications). Those are the types of "rights" these founders were fighting for: the rights to own another human as property.
  - whatshisface 3y ago
    Maybe a blog post that Tim Berners Lee wrote during the standardization of HTTP.
    - rainsford 3y ago
      I agree with your general point that the Federalist Papers aren't quite the same as a random blog post. But to extend that analogy further, if I'm implementing HTTP, should I base my implementation on things only found in a blog post by Tim Berners Lee? Don't get me wrong, the Federalist Papers are important historical documents and provide unique insight into the minds of the authors. But they're not laws, and treating them as if they have actual legal significance seems wrong.
  - IG_Semmelweiss 3y ago
    You are equating a blog post to a paper written by a small group of citizens that dared to risk station, family, and life, to pursue a dream for a nation (not selfish ends), which put them directly in the cross hairs with the superpower of the time?
- MisterBastahrd 3y ago
  The Federalist papers are one half of the story. It takes two sides to have an agreement, and it's a mentally convenient and lazy task to decide that because the sides came to an agreement that favored one of them, that the other is completely irrelevant to the discussion, ESPECIALLY when the nebulous task of trying to divine intent is concerned.
  - 23B1 3y ago
    I'm unclear as to what about my comment led you to believe it was about reading ONLY the federalist papers.
- bestcoder69 3y ago
  Hindsight is 20/20 but I feel like that mistake is on the Founding Fathers. If you want us to do something, say it in the place where you put all the rules instead of hoping we'll read some other thing, y'know. Maybe a datapoint supporting the Flynn Effect?
domador 3y ago
Society should require that the spirit and purpose of any law be included as a preamble to that law's text and be used in the interpretation, application, and future adaptation of that law. The spirit and purpose may be obvious at the time, but won't necessarily be that way to future generations. Laws with no explanation about their purpose or goals are like the compiled binaries of a program. Ideally, in the future you'd like to be able to edit the source code and recompile it, not blindly patch the binaries.
- smugma 3y ago
  That’s more aligned with countries that follow civil law work. They define the law and what it covers. In contrast, common law is more open to interpretation, changes over time, etc. Yes, this is super generalized, but the dichotomy explains two very different approaches to how countries approach their writing and interpreting of laws.
  - logicchains 3y ago
    This is one of the reason common law countries are generally wealthier than civil law ones, because precedent is stronger in common law, so it's easier to do business (less uncertainty).
    - bernawil 3y ago
      Sounds like a just-so explanation and something something causation ≠ correlation. Like me saying "Countries that use imperial units are richer than countries that use metric. The inconsistency in the former make their citizens more adaptable from childhood and supercharge their productivity."
- derefr 3y ago
  Okay, so what do you do with laws that already exist at the time your country is founded, which 100% of the public wants to keep, but has no justification for?
  - 3y ago
deleted 3y ago
[deleted]
kortilla 3y ago
The wiretapping law did not have the intent of eavesdropping on arbitrary conversations (it is orthogonal to bugging peoples homes). It also did not allow mail to be opened. The “spirit of the law” argument is bullshit here in tenuously trying to expand wiretapping to decrypting text.
hammock 3y ago
> The people who invented "using gold coins as a common exchange for barter" weren't thinking about anonymity What makes you say that anonymity wasn’t a concern? I have a hard time believing that claim without any substantiation. Anonymity in market participation and transactions has been an important consideration for millennia. Anyone who has watched Jasmine put on peasant clothes and visit the market in Disney’s Aladdin can understand that
- avianlyric 3y ago
  > What makes you say that anonymity wasn’t a concern? I have a hard time believing that claim without any substantiation. Because the inverse claim, “people using gold coins thousands of years ago for common exchange were worried about the anonymity of their transactions”, is absurd. It’s not like the alternative to gold coins two millennia ago was a traceable currency, the technology for tracking a large population literally didn’t exist, and wouldn’t exist for almost two thousand years. People relying on gold coins couldn’t possibly conceive of a world where people’s every transaction could be reliably tracked.
  - hammock 3y ago
    >The inverse claim, “people using gold coins thousands of years ago for common exchange were worried about the anonymity of their transactions”, is absurd. Can you explain why? I have already given a historical example to the contrary (granted a fictional one but one based on similar true accounts) The ancient Romans invented the Census to reliably track every person. It seems a little goofy to suggest that they “couldn’t possibly conceive” of a similar accounting of transactions
    - varenc 3y ago
      How would the Romans, or anyone else, have implemented practical tracking for every day transactions? Is there a single historical example of this being done in the pre-digital world? The Census is a survey of people/household/assets, but logging all exchanges of currency is several orders of magnitude more records. I can’t really think of any practical way this could have been done, especially when assuming some people would be adversarial to the tracking (which are exactly the transactions you’d want to track) Not saying they didn’t see anonymity as a desirable property of transactions, but I don’t take this as proof that they definitely did.
javajosh 3y ago
>weren't thinking about anonymity "You don't know what you got till its gone." - Joni Mitchell

by derefr 3y ago

23B1 3y ago

This is why the Federalist Papers are some of the most important documents when understanding the intent of the Constitution and Bill of Rights – and simultaneously the least read! I'm not saying that case law isn't also an important aspect of the 'law' and that the constitution shouldn't be amended – I'm not really a hardcore 'originalist' – I just mean that any time a SCOTUS ruling comes out, it's clear that in the public square discussion, nobody has read these very important contextual documents and it is maddening.

kmbfjr 3y ago
What a wordy way to admit to dismissing anyone’s argument to which you do not agree because “they have not read the…”.
- 23B1 3y ago
  I agree. Arguments from ignorance should be dismissed.
derefr 3y ago
There seems to be a function missing from government. All governments, AFAICT. Legislators change the law (including, rarely, the constitution) — effectively by applying a hierarchy of "countermanding orders" — to suit the changing interests of the public. Courts interpret the law, but only downstream of legislation. The executive can make regulation and executive orders, but only in agreement with the law. But at the founding of any given country, something else usually happens: certain rights and laws that are already recognized intuitively become enshrined into the country's constitution. Things are written down into law not as a representation of a shift in public sentiment, but as a recognition of existing sentiment, and the desirability to formalize that sentiment as law to protect it from encroachment by legislation. Usually, this is done in the form of "representative anarchy": the people who establish a country are the people everyone rallied behind to overthrow the previous country; and because of this, they have very good knowledge of what rights their constituents were demanding that the previous government wasn't giving them. There's no trivial way to map this "representative anarchy" process of self-evident-rights information-gathering into an equivalent process that would occur within an established continuous government. But that doesn't mean it's impossible. For example, there could be a government department charged with 1. doing a kind of embedded journalism to figure out what issues "the people" are beginning to care about, that the law's stance on has no clear basis, because those issues were irrelevant when the constitution was enshrined; and then 2. coming up with referrendum-like polls to gather data on said public sentiment; where if the polls indicate a need, then at that point 3. the data will lead to a mandate for a constitutional amendment enshrining the public's desires to be created and put into force, which stands until this has successfully occurred; where 4. it is then up to the legislature and the supreme court to work together to draft the amendment; but 5. the ability to ratify the amendment is not in the hands of the legislature or the courts, but instead, this department will assemble a federal grand jury with participants from all states, which has a veto over each draft, and a congressional-subpoena-like ability to summon and retain the services of arbitrary legal experts to interpret the draft. (In est, this is trying to get as close as possible to having the public write the amendment themselves, with the legislature+courts being forced to "do the hard work" but not having any power over the result.) But exactly how such a system would work isn't really my point; my point is that there is currently no such system, and that this is perhaps a problem. In fact, it is perhaps the problem — the problem that leads to governments founded with public support increasingly failing to address the interests of the people over time; and so, to governments being overthrown and new countries being founded.
rootusrootus 3y ago
For completeness, read the anti-federalist papers too. The collective opinion of Hamilton, Madison, and Jay is just one point of view.
- bryanrasmussen 3y ago
  I guess I don't get why the arguments against the Constitution of the time would be useful for "understanding the intent of the Constitution and Bill of Rights"?
  - turmacar 3y ago
    Because they are directly responsible for the Bill of Rights because they felt the Constitution didn't provide enough protection/clarity in some cases.
  - walterbell 3y ago
    For the same reason patch reviews can lead to code improvement.
  - 8note 3y ago
    The thing that passed is always a compromise between opposing views Only reading the federalist papers gives you a stilted opinion of what caused things to be the way they are
  - jean_lannes 3y ago
    The Bill of Rights came about largely as a product of anti-federalist agitation. Many prominent federalists felt that a Bill of Rights would be redundant; in federalist 84, Hamilton writes the following: > There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. [1] [1] https://avalon.law.yale.edu/18th_century/fed84.asp https://avalon.law.yale.edu/18th_century/fed84.asp
pierat 3y ago
The Federalist papers are the equivalent of a Medium blog post. And I will treat them as such. Edit: Evidently I've pissed off enough people who drink the red-white-blue kool-aid. -3 at the moment. These newspaper publishings were expressly for the solidification of power at the federal level, and the weakening of the states. And only look closer at what the "federal" powers were about, and it was all about "secur(ing) the existence of (their) people and a future for white children." (cite: 14 words) Hamilton/Madison/Jay and others knew if a strong federal law reigned supreme, his and other founders' slaves and their current wealth would be greatly solidified. And right he was. And all those slaves also gave 3/5'th a vote per human they enslaved. While many of you say it was for "selfless reasons", my only response is a great big belly laugh. So perhaps, I was wrong calling these an equivalent of a Medium blog post. No, instead they'd fit right in on the Daily Stormer or Stormfront (2 neonazi publications). Those are the types of "rights" these founders were fighting for: the rights to own another human as property.
- whatshisface 3y ago
  Maybe a blog post that Tim Berners Lee wrote during the standardization of HTTP.
  - rainsford 3y ago
    I agree with your general point that the Federalist Papers aren't quite the same as a random blog post. But to extend that analogy further, if I'm implementing HTTP, should I base my implementation on things only found in a blog post by Tim Berners Lee? Don't get me wrong, the Federalist Papers are important historical documents and provide unique insight into the minds of the authors. But they're not laws, and treating them as if they have actual legal significance seems wrong.
- IG_Semmelweiss 3y ago
  You are equating a blog post to a paper written by a small group of citizens that dared to risk station, family, and life, to pursue a dream for a nation (not selfish ends), which put them directly in the cross hairs with the superpower of the time?
MisterBastahrd 3y ago
The Federalist papers are one half of the story. It takes two sides to have an agreement, and it's a mentally convenient and lazy task to decide that because the sides came to an agreement that favored one of them, that the other is completely irrelevant to the discussion, ESPECIALLY when the nebulous task of trying to divine intent is concerned.
- 23B1 3y ago
  I'm unclear as to what about my comment led you to believe it was about reading ONLY the federalist papers.
bestcoder69 3y ago
Hindsight is 20/20 but I feel like that mistake is on the Founding Fathers. If you want us to do something, say it in the place where you put all the rules instead of hoping we'll read some other thing, y'know. Maybe a datapoint supporting the Flynn Effect?

domador 3y ago

Society should require that the spirit and purpose of any law be included as a preamble to that law's text and be used in the interpretation, application, and future adaptation of that law. The spirit and purpose may be obvious at the time, but won't necessarily be that way to future generations. Laws with no explanation about their purpose or goals are like the compiled binaries of a program. Ideally, in the future you'd like to be able to edit the source code and recompile it, not blindly patch the binaries.

smugma 3y ago
That’s more aligned with countries that follow civil law work. They define the law and what it covers. In contrast, common law is more open to interpretation, changes over time, etc. Yes, this is super generalized, but the dichotomy explains two very different approaches to how countries approach their writing and interpreting of laws.
- logicchains 3y ago
  This is one of the reason common law countries are generally wealthier than civil law ones, because precedent is stronger in common law, so it's easier to do business (less uncertainty).
  - bernawil 3y ago
    Sounds like a just-so explanation and something something causation ≠ correlation. Like me saying "Countries that use imperial units are richer than countries that use metric. The inconsistency in the former make their citizens more adaptable from childhood and supercharge their productivity."
derefr 3y ago
Okay, so what do you do with laws that already exist at the time your country is founded, which 100% of the public wants to keep, but has no justification for?
- 3y ago

deleted 3y ago

[deleted]

kortilla 3y ago

The wiretapping law did not have the intent of eavesdropping on arbitrary conversations (it is orthogonal to bugging peoples homes). It also did not allow mail to be opened. The “spirit of the law” argument is bullshit here in tenuously trying to expand wiretapping to decrypting text.

hammock 3y ago

> The people who invented "using gold coins as a common exchange for barter" weren't thinking about anonymity What makes you say that anonymity wasn’t a concern? I have a hard time believing that claim without any substantiation. Anonymity in market participation and transactions has been an important consideration for millennia. Anyone who has watched Jasmine put on peasant clothes and visit the market in Disney’s Aladdin can understand that

avianlyric 3y ago
> What makes you say that anonymity wasn’t a concern? I have a hard time believing that claim without any substantiation. Because the inverse claim, “people using gold coins thousands of years ago for common exchange were worried about the anonymity of their transactions”, is absurd. It’s not like the alternative to gold coins two millennia ago was a traceable currency, the technology for tracking a large population literally didn’t exist, and wouldn’t exist for almost two thousand years. People relying on gold coins couldn’t possibly conceive of a world where people’s every transaction could be reliably tracked.
- hammock 3y ago
  >The inverse claim, “people using gold coins thousands of years ago for common exchange were worried about the anonymity of their transactions”, is absurd. Can you explain why? I have already given a historical example to the contrary (granted a fictional one but one based on similar true accounts) The ancient Romans invented the Census to reliably track every person. It seems a little goofy to suggest that they “couldn’t possibly conceive” of a similar accounting of transactions
  - varenc 3y ago
    How would the Romans, or anyone else, have implemented practical tracking for every day transactions? Is there a single historical example of this being done in the pre-digital world? The Census is a survey of people/household/assets, but logging all exchanges of currency is several orders of magnitude more records. I can’t really think of any practical way this could have been done, especially when assuming some people would be adversarial to the tracking (which are exactly the transactions you’d want to track) Not saying they didn’t see anonymity as a desirable property of transactions, but I don’t take this as proof that they definitely did.

javajosh 3y ago

>weren't thinking about anonymity "You don't know what you got till its gone." - Joni Mitchell