Comment by daenz | Hacker News Reader

Comment by daenz | Hacker News Reader

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>Shall I go on?

You should, because you'll quickly realize that there are far, far more activities that potentially cause harm to others than there are laws that prohibit them. Also, vaccines and smoking have a history that are peppered with lawsuits about their legality, so as far as examples go, they are not the ones I would hold up as evidence of laws that people clearly think are constitutional.

The flu killed ~50,000 last year in the USA. Do we require all non-essential businesses to shut down and everyone quarantine? Is there some magical cutoff number between 50,000 (flu deaths) and 80,000 (COVID deaths) where we decide to shut down the entire country?

Also you're conflating "the government has the right" with "there exists a law." The government has the right to enforce the law, but there is no innate right in that law itself. If we overturned smoking laws tomorrow, it doesn't remove rights from the government, it removes laws that the government enforces.

The government does not have to protect its ability to ban potentially harmful actions by banning every possible harmful action. The purpose of the legislative representatives is to make judgement calls about which things have enough potential harm to warrant restriction. I really don't understand the argument here that because not all harmful actions are banned, that banning harmful actions is not constitutional. Am I just not understanding what your argument is?

> The purpose of the legislative representatives is to make judgement calls about which things have enough potential harm to warrant restriction.

That's what they currently claim, but it's not what they're supposed to be doing. We made a huge mistake when we allowed the government to morph from "enforce the minimum basic rules that are necessary to have a civil society" to "solve everything that anyone thinks is a problem".

Do you have some specific examples of the latter?

Do you have any specific examples that aren't the latter?

That sounds facetious, but I'm being serious. Go read the United States Code, or the Code of Federal Regulations, and tell me how many of those laws and regulations you think really are within the limited powers granted to the Federal government by the Constitution and the Bill of Rights. Go read Supreme Court decisions like Wickard v. Filburn or Kelo v. New London, or for that matter even Brown v. Board of Education or Roe v. Wade, and tell me whether those decisions really are in accordance with the limited powers the Federal government is supposed to have.

Yes, you can argue that some of those laws and regulations and decisions were good from a public policy standpoint. (Although it would be hard to make a case that our public schools are really any better more than half a century after Brown v. Board of Education than they were before. And not everybody agrees with current jurisprudence on abortion.) You can also argue that some of them plainly weren't. (Is it really a good idea to restrict what a farmer can grow on his own land, for his own use, in the name of regulating "interstate commerce"? Is it really a good idea to have the government artificially manipulating the market for food in the first place, especially when it's being done at the behest of large corporations and their lobbyists? Does evicting people from their homes and handing the land over to a private development company really count as a valid use of the government's eminent domain power?)

But in either case, you're arguing from an implicit assumption that the government is supposed to fix problems, and you're arguing about whether it did a good or a bad job. Nobody ever even asks why the government is intruding in all these activities in the first place, if it's just supposed to be enforcing the basic rules needed to have a civil society.

Thank you, I was genuinely curious as to what you had in mind -- I came up with a lot of possible examples, hence the question.

I think it's going to come down to definitions unfortunately. For example, what do we mean when we say

> enforce the minimum basic rules that are necessary to have a civil society

One could argue that Brown v Board of Education had little to do with policy and more to do with basic rules for civil society. For your other examples, I can see compelling arguments for why the federal government took this actions (with a justifiable reason). Many of them fall under the fact that the government is ultimately a forum for resolving large scale organizational challenges that the market is not properly incentivized to tackle.

Yes, these powers can be abused, and while restricting the government from acting in certain ways may be a method of curtailing those abuses, it would be a tradeoff in terms of the government effectively being able to accomplish its purpose.

> But in either case, you're arguing from an implicit assumption that the government is supposed to fix problems, and you're arguing about whether it did a good or a bad job. Nobody ever even asks why the government is intruding in all these activities in the first place, if it's just supposed to be enforcing the basic rules needed to have a civil society.

It builds down to a tension between "fix problems" and "enforce basic rules needed to have a civil society." Even in the situations you cite, the two can be in conflict. I suspect a lot of the people that one perceives as trying to use the government to "fix problems" may very well be seeing themselves as "enforcing basic rules needed to have a civil society."

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