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> Your premise is that a person being investigated when they're innocent of the original crime is basically harmless because the investigation will come to naug

> Your premise is that a person being investigated when they're innocent of the original crime is basically harmless because the investigation will come to naught. Not at all. I would say that it's usually (not always!) small in the particulars but adds up in aggregate, and that we should be a lot more careful with how much surveillance we allow. I just would also say that the kinds or amounts of harm being done there are manifestly not what Blackstone was talking about in his "formulation" as it leads immediately to absurd conclusions that go very well past the present case. I will not here that "there is a concern here analogous to Blackstone's ratio" is a different thing than, paraphrasing what was up thread, "this is substantially more extreme than Blackstone's ratio should forbid". And in case I haven't said it in thread anywhere, I share concerns about surveillance. I just think if we are enlisting support from historical figures, we should find a quote where they're talking about the question or acknowledge the distance, rather than pretending the quote means something it didn't - that will only turn off those who might be persuaded.

AnthonyMouse 3y ago
> "there is a concern here analogous to Blackstone's ratio" is a different thing than, paraphrasing what was up thread, "this is substantially more extreme than Blackstone's ratio should forbid". I agree with this. What's happening here is different than the scenario in the original ratio, even though it's a similar concern. > I just would also say that the kinds or amounts of harm being done there are manifestly not what Blackstone was talking about in his "formulation" as it leads immediately to absurd conclusions that go very well past the present case. If we direct ourselves to the case at hand, I'm not sure that a general rule that the government can't compel innocent bystanders to assist an investigation against their will would even be a net negative, much less cause serious problems. When a crime is committed people will generally be inclined to help bring the perpetrators to justice, because who wants thieves and murderers and so on going unpunished? Whereas if someone is disinclined to help, we might consider that they could have a reason, e.g. because the law being enforced is unjust or they believe the investigation is not being conducted in good faith, or they simply don't trust the government with the information, at which point the ability to refuse acts as a reasonable check on government power. > I just think if we are enlisting support from historical figures, we should find a quote where they're talking about the question or acknowledge the distance, rather than pretending the quote means something it didn't - that will only turn off those who might be persuaded. I feel like historical quotes tend to detract from discussions in general, because they're effectively an appeal to authority and then the discussion turns to exactly where we are now, debating whether the current situation can be distinguished from the original, which is a separate matter from whether what's happening in the modern case is reasonable or satisfactory in its own right.
- godelski 3y ago
  > What's happening here is different than the scenario in the original ratio, even though it's a similar concern. Correct me if I'm wrong, but I'm pretty sure Blackstone wrote about negative or natural rights. In fact, let me pull out more context around the exact quote. He specifically addresses direct punishment but immediately after is the nature of having the duty to defend one's innocence. Which is exactly the case here. Fourthly, all presumptive evidence of felony should be admitted cautiously, for the law holds that ***it is better that ten guilty persons escape than that one innocent suffer.*** And Sir Matthew Hale in particular lays down two rules most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter till at least the body be found dead; on account of two instances he mentions where persons were executed for the murder of others who were then alive but missing. Lastly, it was an antient and commonly-received practice that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses. I would not be surprised if Blackstone found the act of investigation without the qualification of sufficient suspicion as gross injustice and directly relevant to his intent. As this is a less inconvenient version of locking everyone in a room and interviewing them checking their pockets for stolen goods before they leave. The negative or god given right of innocence is innate. The punishment is the accusation and search, which is an explicit infringement on the natural right. Yes, rights can be infringed upon, but not without due cause and not simply because one is in a position of authority. I know that this is a point of contention in this (these) discussions, but I stand by that a right is being violated and harm is being done by the simple act of investigation. Mass surveillance (which is mass investigation), is an infringement on our god given rights. The point is to have friction for the infringement of rights. All rights can be violated, but they must need sufficient reason. It does not matter if these rights seem inconsequential or not. Because at the end of the day, that is a matter of opinion and perspective. Blackstone was writing about authoritarian governments and the birth of America was similarly founded on the idea of treating government as an adversary. These were all part of the same conversation, and they were happening at the same time. I do not think I am taking the historical quote out of context. I think it is more in context than most realize. But I'm neither a historian nor a lawyer, so maybe there is additional context I am missing. But as far as I can tell, this is all related and we should not be distinguishing investigation (or from the other side of the same coin, exculpation) from punishment as these are in the same concept of reducing one's rights. They are just a matter of degree. https://oll.libertyfund.org/titles/sharswood-commentaries-on-the-laws-of-england-in-four-books-vol-2 https://oll.libertyfund.org/titles/sharswood-commentaries-on...

AnthonyMouse 3y ago

> "there is a concern here analogous to Blackstone's ratio" is a different thing than, paraphrasing what was up thread, "this is substantially more extreme than Blackstone's ratio should forbid". I agree with this. What's happening here is different than the scenario in the original ratio, even though it's a similar concern. > I just would also say that the kinds or amounts of harm being done there are manifestly not what Blackstone was talking about in his "formulation" as it leads immediately to absurd conclusions that go very well past the present case. If we direct ourselves to the case at hand, I'm not sure that a general rule that the government can't compel innocent bystanders to assist an investigation against their will would even be a net negative, much less cause serious problems. When a crime is committed people will generally be inclined to help bring the perpetrators to justice, because who wants thieves and murderers and so on going unpunished? Whereas if someone is disinclined to help, we might consider that they could have a reason, e.g. because the law being enforced is unjust or they believe the investigation is not being conducted in good faith, or they simply don't trust the government with the information, at which point the ability to refuse acts as a reasonable check on government power. > I just think if we are enlisting support from historical figures, we should find a quote where they're talking about the question or acknowledge the distance, rather than pretending the quote means something it didn't - that will only turn off those who might be persuaded. I feel like historical quotes tend to detract from discussions in general, because they're effectively an appeal to authority and then the discussion turns to exactly where we are now, debating whether the current situation can be distinguished from the original, which is a separate matter from whether what's happening in the modern case is reasonable or satisfactory in its own right.

godelski 3y ago
> What's happening here is different than the scenario in the original ratio, even though it's a similar concern. Correct me if I'm wrong, but I'm pretty sure Blackstone wrote about negative or natural rights. In fact, let me pull out more context around the exact quote. He specifically addresses direct punishment but immediately after is the nature of having the duty to defend one's innocence. Which is exactly the case here. Fourthly, all presumptive evidence of felony should be admitted cautiously, for the law holds that ***it is better that ten guilty persons escape than that one innocent suffer.*** And Sir Matthew Hale in particular lays down two rules most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter till at least the body be found dead; on account of two instances he mentions where persons were executed for the murder of others who were then alive but missing. Lastly, it was an antient and commonly-received practice that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses. I would not be surprised if Blackstone found the act of investigation without the qualification of sufficient suspicion as gross injustice and directly relevant to his intent. As this is a less inconvenient version of locking everyone in a room and interviewing them checking their pockets for stolen goods before they leave. The negative or god given right of innocence is innate. The punishment is the accusation and search, which is an explicit infringement on the natural right. Yes, rights can be infringed upon, but not without due cause and not simply because one is in a position of authority. I know that this is a point of contention in this (these) discussions, but I stand by that a right is being violated and harm is being done by the simple act of investigation. Mass surveillance (which is mass investigation), is an infringement on our god given rights. The point is to have friction for the infringement of rights. All rights can be violated, but they must need sufficient reason. It does not matter if these rights seem inconsequential or not. Because at the end of the day, that is a matter of opinion and perspective. Blackstone was writing about authoritarian governments and the birth of America was similarly founded on the idea of treating government as an adversary. These were all part of the same conversation, and they were happening at the same time. I do not think I am taking the historical quote out of context. I think it is more in context than most realize. But I'm neither a historian nor a lawyer, so maybe there is additional context I am missing. But as far as I can tell, this is all related and we should not be distinguishing investigation (or from the other side of the same coin, exculpation) from punishment as these are in the same concept of reducing one's rights. They are just a matter of degree. https://oll.libertyfund.org/titles/sharswood-commentaries-on-the-laws-of-england-in-four-books-vol-2 https://oll.libertyfund.org/titles/sharswood-commentaries-on...