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The Government Uses Zero Days for “Offense”

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Re: The Government Uses Zero Days for “Offense”

#101

Post by agarden »

ethanbond wrote: post #82
agarden wrote: post #63

Earlier quoted context omitted.

> If the Constitution said "there may be no dog-walking on Thursday", the constitutionality of dog-walking on Thursday would rest entirely upon the decisions of the judiciary with regards to its constitutionality What you are asserting is that we are not ruled by written law, but by a judiciary, who feels themselves free to invent "escape hatches" to avoid old commitments now deemed undesirable.

Yes, that is by design. Then the legislature can make a new law which can nullify a judiciary's decision. Or the executive can just stop arresting people for the crime and then the judiciary never gets a say. That's what checks and balances are.

If the old, nullified Constitutional provision said that dog-walking on Thursdays was illegal, what new law is the judiciary supposed to pass to make dog-walking illegal on Thursdays again? If the judiciary is free to impose whatever interpretation on whatever text they want, and then their interpretation is the real law, then there is no law the legislature can pass to change that.

Of course everyone always has the possibility of fighting; civil war is always an option. But if the principle is that the judiciary gets to make law just howsoever it pleases, then one loses the ability to call the government out on anything. It just becomes "that's not what I want" versus "that's not what you want".

Which is where we are at with this surveillance mess. Except that because we have a written Constitution with an explicit method for amendation, instead of an implicit right of amendment by Judiciary, we do have a basis for pointing out that the government is out of bounds and for demanding reform. Reject that and everything becomes legal and there is nothing you can do except complain that you don't like it.

Re: The Government Uses Zero Days for “Offense”

#102

Post by agarden »

eropple wrote: post #96
jqm wrote: post #90

Earlier quoted context omitted.

On some points interpretation may be needed. On other points it's a stretch. At still other points maybe a stretch to breaking and beyond. You may not care for literal text, but a lawful society depends on it. Governments just doing whatever they feel is best at the moment aren't generally very robust. There has to be restraint over a judiciary. A limit to how far they can stretch things. Opinions vary on what this l…

Er, there is restraint over the judiciary. Justices can be removed by the legislative branch. It's hard. But that's intentional, too.

What if the removed justices sued and the judiciary hearing the case ruled that, in fact, Constitutional provisions be damned, the legislative branch may not remove justices.

Were that to happen, how could you argue that they are wrong?

Re: The Government Uses Zero Days for “Offense”

#103

Post by gnaritas »

jqm wrote: post #100
gnaritas wrote: post #97

Earlier quoted context omitted.

I agree that we as voters vote our interests; I don't, and won't agree that the average joe can read and correctly interpret the constitution and they never will. It is a legal document and understanding it requires more than just the words on the page.

That's a common line from some sectors. It gets repeated a lot. There is probably a reason for that but I don't believe it's objective.

It's common because it's true, whether you choose it accept it or not really doesn't matter, legal documents cannot be understood merely by the words on the page. They exist in a field of precedence and lacking an understanding of the precedence the common person cannot properly understand the intended meaning which whether you see it or not is referencing that precedence.

Re: The Government Uses Zero Days for “Offense”

#104

Post by ethanbond »

agarden wrote: post #101
ethanbond wrote: post #82

Earlier quoted context omitted.

Yes, that is by design. Then the legislature can make a new law which can nullify a judiciary's decision. Or the executive can just stop arresting people for the crime and then the judiciary never gets a say. That's what checks and balances are.

If the old, nullified Constitutional provision said that dog-walking on Thursdays was illegal, what new law is the judiciary supposed to pass to make dog-walking illegal on Thursdays again? If the judiciary is free to impose whatever interpretation on whatever text they want, and then their interpretation is the real law, then there is no law the legislature can pass to change that. Of course everyone always has the…

The judiciary doesn't pass laws. The judiciary can choose to nullify a law by choosing "not guilty" for anyone charged under a law that's unjust. The executive can also just not arrest people seen walking their dogs on Thursdays. The legislature could just revoke the law that made it illegal to begin with, then the executive and judiciary have no right to arrest or convict under it anymore – even if the previous precedent was considered sound.

This is how the government works. Yes, transition periods may be sloppy (people may be arrested for walking their dogs), but it will equalize.

Legislature makes an unjust law The executive can choose to enforce or not to enforce If the executive enforces, the judiciary can choose not to convict

Let's say for this specific scenario, assuming the surveillance isn't Constitutional (big assumption):

1: Executive begins doing something that's not Constitutional Judiciary chooses not to convict Law is nullified and executive will stop enforcing (what would be the point?)

2: Executive begins doing something that's not Constitutional Judiciary chooses to convict (the law is now officially Constitutional) Legislature disagrees with convictions and can pass specific laws outlawing the original executive actions, OR revoke the original law which allowed the unconstitutional interpretation

This is all by design. This is how it's meant to work. Just because you don't think it's working in your favor does not mean it's broken.

Re: The Government Uses Zero Days for “Offense”

#105

Post by agarden »

ethanbond wrote: post #104
agarden wrote: post #101

Earlier quoted context omitted.

If the old, nullified Constitutional provision said that dog-walking on Thursdays was illegal, what new law is the judiciary supposed to pass to make dog-walking illegal on Thursdays again? If the judiciary is free to impose whatever interpretation on whatever text they want, and then their interpretation is the real law, then there is no law the legislature can pass to change that. Of course everyone always has the…

The judiciary doesn't pass laws. The judiciary can choose to nullify a law by choosing "not guilty" for anyone charged under a law that's unjust. The executive can also just not arrest people seen walking their dogs on Thursdays. The legislature could just revoke the law that made it illegal to begin with, then the executive and judiciary have no right to arrest or convict under it anymore – even if the previous prec…

(First a note: "what new law is the judiciary supposed to pass" was meant to be "what new law is the legislature...".)

I'm not sure we disagree. You seem to be arguing that no one branch is the final arbiter of what is constitutional; that each is allowed its independent opinion. I agree with that. What I was arguing against in this thread is the proposition that the judiciary alone gets to decide what is constitutional and that it gets to do so regardless of what the constitution actually says.

You ended with "This is all by design. This is how it's meant to work," which is a claim that only makes sense if we have a system where the constitution actually means something and its meaning is binding. If the judiciary is free to redefine the constitution however they want, then we are not living under a government that has a design or a correct way to work.

Re: The Government Uses Zero Days for “Offense”

#106

Post by eropple »

agarden wrote: post #102
eropple wrote: post #96

Earlier quoted context omitted.

Er, there is restraint over the judiciary. Justices can be removed by the legislative branch. It's hard. But that's intentional, too.

What if the removed justices sued and the judiciary hearing the case ruled that, in fact, Constitutional provisions be damned, the legislative branch may not remove justices. Were that to happen, how could you argue that they are wrong?

You effectively can't, because "but the Constitution" is not a method of legal operation in the United States. At that point, you indeed do have a legitimate breakdown in governance. I expect such a situation would cause the kind of crisis that destroys a government.

(I'm not saying I am describing something that is good. I prefer to live in the world of the descriptive when it comes to legal matters, rather than the prescriptive. There are things I want very much to see changed--but I recognize that the process that exists isn't going away.)

Re: The Government Uses Zero Days for “Offense”

#107

Post by jqm »

gnaritas wrote: post #103
jqm wrote: post #100

Earlier quoted context omitted.

That's a common line from some sectors. It gets repeated a lot. There is probably a reason for that but I don't believe it's objective.

It's common because it's true, whether you choose it accept it or not really doesn't matter, legal documents cannot be understood merely by the words on the page. They exist in a field of precedence and lacking an understanding of the precedence the common person cannot properly understand the intended meaning which whether you see it or not is referencing that precedence.

I'm sorry. You don't need legal training to read and understand most of the Constitution. Much of it is fairly plain and straightforward. Much of the "context" you speak of often comes after the fact. I would suggest rather than trying to beat a worn out point you take half an hour and actually read the document. You can do it... even without a law degree. We can read it.. we can see if it is manifestly being violated, we can vote accordingly. That is the intent. The intent is not that we are governed by an army of lawyers twisting a document into whatever they choose.

Re: The Government Uses Zero Days for “Offense”

#108

Post by gnaritas »

jqm wrote: post #107
gnaritas wrote: post #103

Earlier quoted context omitted.

It's common because it's true, whether you choose it accept it or not really doesn't matter, legal documents cannot be understood merely by the words on the page. They exist in a field of precedence and lacking an understanding of the precedence the common person cannot properly understand the intended meaning which whether you see it or not is referencing that precedence.

I'm sorry. You don't need legal training to read and understand most of the Constitution. Much of it is fairly plain and straightforward. Much of the "context" you speak of often comes after the fact. I would suggest rather than trying to beat a worn out point you take half an hour and actually read the document. You can do it... even without a law degree. We can read it.. we can see if it is manifestly being violate…

Don't play superior, you're not; I've read it more than a few times and worked in law enforcement. You think your interpretation is somehow right while ignoring the reality that reasonable people disagree on the meaning of it and denying they even can. You're blinded by your own ideology. We're done.

Re: The Government Uses Zero Days for “Offense”

#109

Post by agarden »

eropple wrote: post #106
agarden wrote: post #102

Earlier quoted context omitted.

What if the removed justices sued and the judiciary hearing the case ruled that, in fact, Constitutional provisions be damned, the legislative branch may not remove justices. Were that to happen, how could you argue that they are wrong?

You effectively can't, because "but the Constitution" is not a method of legal operation in the United States. At that point, you indeed do have a legitimate breakdown in governance. I expect such a situation would cause the kind of crisis that destroys a government. (I'm not saying I am describing something that is good. I prefer to live in the world of the descriptive when it comes to legal matters, rather than the…

So who got to decide that it works this way?

The Constitution doesn't say it works this way, and that was the document that was voted on by the representatives of the people. So whoever it was that decided it actually works a totally different way, why should I care what they think?

Re: The Government Uses Zero Days for “Offense”

#110

Post by jqm »

gnaritas wrote: post #108
jqm wrote: post #107

Earlier quoted context omitted.

I'm sorry. You don't need legal training to read and understand most of the Constitution. Much of it is fairly plain and straightforward. Much of the "context" you speak of often comes after the fact. I would suggest rather than trying to beat a worn out point you take half an hour and actually read the document. You can do it... even without a law degree. We can read it.. we can see if it is manifestly being violate…

Don't play superior, you're not; I've read it more than a few times and worked in law enforcement. You think your interpretation is somehow right while ignoring the reality that reasonable people disagree on the meaning of it and denying they even can. You're blinded by your own ideology. We're done.

I'm sorry you think I'm playing superior. That's not my intent. I'm also sorry you feel as you do. I think I've made my point. You seem to be deliberately ignoring it. You appear to have heard something and are parroting it without thinking about it. I don't think that's the best thing to do. And I agree, we are done.
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