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Comment by xxpor | Hacker News Reader

>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.

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> the constitution isn't a founding document. There was that whole Articles of Confederation thing.

This isn't a nitpick, this is simply irrational. The Articles of Confederation were the founding document of an institution called the "league of friendship," and although the Constitution inherits ideas from the Articles, they have no legal bearing on the latter. They're out of scope.

Meanwhile, the Constitution literally constitutes the foundations of an institution called "the U.S. federal government" which, discounting some rather academic Theseus' Ship arguments, is what governs us, today.

The constitution was no the first document written on this continent, but it is the last document in which we've invested our collective institution-reifying intention at the national level.

This was very eloquent. I appreciate this description.

Thank you for saying so. It warms my heart to be read, since I try to be meticulous.

> What you're proposing is essentially a oligarchy lead by the Supreme Court.

Overall agree that we shouldn't be throwing members of Congress in jail over good-faith disagreements of constitutionality, etc.

However, "Supreme Court oligarchy" is a stretch. Even if their rulings could send lawmakers to jail.

Amending the Constitution is always an option, and that's a 100% Legislative (Federal + 38 States) action that neither the courts nor the President can block.

With enough consensus, the Legislature (and by proxy, the electorate) technically have all the power.

1. Constitutional + simple majority + Presidential support = law.

2. Constitutional + 2/3 majority = law.

3. Unconstitutional + 2/3 majority + 38 states = law.

But, broad consensus among the electorate is hard to come by these days, especially on contentious issues.

Instead, both parties rail against "activist judges", stack the courts every opportunity they get, and regularly pass laws/programs with debatable constitutionality to constantly push the boundaries.

This is likely the correct "play to win" strategy too. I just wish people played the game as intended.

So, definitely understand the appeal for some sort of "punishment" against bad faith lawmaking, etc. Even if untenable in reality.

> 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.

Not the same thing IMO. Ignoring the issue of who was allowed to vote in the 1780s, there's a reason why the House was voted on by the people and the Senate the state legislatures. They recognized then the two groups have different interests.

> Colan R said: So technically, through representative democracy, the regular people did agree to the constitution because their representatives agreed on it.

>> xxpor said: Not the same thing IMO.

It actually is. This country is not a direct democracy. You are trying to reinterpret the structure of this Republic. The people through their votes uphold the structure every time they vote. It's a collective decision (social contract) to have our vote to have representation and we 'trust' (for lack of a better term) said Rep. to perpetuate the ability of governing.

[edited: accidental pasted something additionally]

State Senators were still voted on by the People, and part of the vote of confidence for taking part in the State Senate was a recognition of their capability to choose who represented the State at the National level based on understanding of the State's business.

To be honest, I kind of wonder whether it was better to let the State Legislature decide. Wasn't alive then though and haven't done the research.

> State Senators were still voted on by the People...I kind of wonder whether it was better to let the State Legislature decide.

It seems you don't understand the difference between how the people directly elected US Senators since 1913 versus a State Republic that was voted on.

These are two very different things. I say very because one is more Democratic and the other is more Republic. A Republic is an indirect mechanism whereas Democratic is a direct mechanism.

Those State Senators were still selected by what was then a very small faction of the "People": non-slave male landowners.

Who do you think was allowed to vote to choose those people? Only free men who owned land. That was a very, very small fraction of the population of the colonies/US at the time. These were hardly "regular people".

>Congress isn't the final authority of if laws are constitutional or not.

Actually, the legislative branch is the final authority on what is Constitutional or not. Who do you think proposes, passes, organizes Constitutional Conventions, and ratifies Amendments?

It certainly isn't the Courts. Heck, judicial review isn't even enshrined in the Constitution, It just arose spontaneously out of case law; and everyone has been okay with it by and large such that there hasn't been the will to pass a "no judicial review" Amendment.

I mean, it seems silly to talk about, but it is right there. Though yes, for the last 200 year's, the Supreme Court striking down something as unconstitutional has generally been accepted as burying something six feet under politically, because no one in their right mind wants to carry the mark of "The person who changed the Constitution just to invalidate a Supreme Court decision."

> 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 definitely the definition of a social _construct_, if not a social contract, but it amounts to the same thing.

>Nitpick, the constitution isn't a founding document. There was that whole Articles of Confederation thing.

Let's totally 'nitpick' because the structure that our entire government is built upon the Constitution. "The first, The Articles of Confederation, was in effect from March 1, 1781, when Maryland ratified it. The second, The Constitution, replaced the Articles when it was ratified by New Hampshire on June 21, 1788." [1]

If this 7 year gap is something that's causing you issues, just know that today that we aren't judged by 1900 laws. We're judged by the living document called the Constitution, as it 'replaced the Articles when it was ratified', and auxiliary laws via State/Local govts. But the backbone is the Constitution.

>Congress isn't the final authority of if laws are constitutional or not. The courts are.

In theory, sure. But Dred Scott said one thing (no Black person is free, even in the North) and the people in the North said something else with their 2nd amendment rights.

>What you're proposing is essentially a oligarchy lead by the Supreme Court.

Actually I'm not. A law can (and in many cases, already does) include what appropriate punishments should be for a law that is broken.

> 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.

These statements are entirely false.

1) Your first sentence and your second sentence are contradicting each other. ~'no social contract' vs ~'what a social contract is'.

2) As for the latter two sentences. We vote everyday with our citizenship. You either agree to that living document or you don't by your allegiance. No one is forcing you to be a US citizen ruled by Constitution, namely after an adult legal age. Constitution is just American's structure, it can be changed but within it's already given framework. The country could become a Communist rule of law, if it got ratified, whether an individual liked it or not.

[1] - https://www.usconstitution.net/constconart.html

> No one is forcing you to be a US citizen ruled by Constitution, namely after an adult legal age.

Rejecting US citizenship is difficult and costly, this places it practically out of reach of most US citizens

> Rejecting US citizenship is difficult and costly

Freedom isn't free.

No the US government is just unreasonably burdensome about releasing their snooping privileges on you. As an ex-pat the amount of demands the US puts on me is quite extreme compared to some of my fellow ex-pat coworkers from Mexico, Australia and Brazil.

The US demands ongoing duplication of information which they already have access to due to international income sharing laws and has an expectation for a portion of the income I earn entirely overseas. The only thing I get in return is the ability to "reactivate" my citizenship at will, but that's only because it costs about 7k to actually revoke your citizenship and your taxes are going to get reeeeeally closely audited for any missing back-taxes.

TIL, as a US citizen, I’m apparently not free!

Better late than never to learn.

It’s clearly sarcasm.

Yes but I felt it was wise of me to talk to readers whom...might've thought you were serious. :)

> We vote everyday with our citizenship. You either agree to that living document or you don't by your allegiance. No one is forcing you to be a US citizen

You say that like anyone can just up and walk away. Where are you going to go? The borders are closed. If they weren't, they're going to want your tax money for a while, and if you don't like that you'll be deported and imprisoned. Disagree with any of that enough at any stage and your citizenship will be enforced with violence and death if need be.

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