Comment by Alupis | Hacker News Reader

Comment by Alupis | Hacker News Reader

FTA:

> California Governor Gavin Newsom eagerly signed the bill into law, wanting to get some headlines about how he was “protecting the children.” When NetChoice challenged the law, Newsom sent them a very threatening letter, demanding they drop the lawsuit. Thankfully, they did not, and the court saw through the ruse and found the entire bill unconstitutional for the exact reasons we had warned the California government about.

> Specifically, they call out the DPIA requirement. This is a major portion of the law, which requires certain online businesses to create and file a “Data Protection Impact Assessment” with the California Attorney General. Part of that DPIA is that you have to explain how you plan to “mitigate the risk” that “potentially harmful content” will reach children (defined as anyone from age 0 to 18).

> And we’d have to do that for every “feature” on the website. Do I think that a high school student might read Techdirt’s comments and come across something the AG finds harmful? I need to first explain our plans to “mitigate” that risk. That sure sounds like a push for censorship.

It's some biased reporting here to be sure - but it's amazing how something like this gets so far as to actually be signed into law. It has significant and obvious flaws, the least of which are the constitutionality.

How have we gotten to a place where our elected officials - sworn to uphold the constitution - willingly and knowingly pass unconstitutional laws just to see how long they can get away with it?

Mike Masnick has a well known bias, and generally I think it fairly well matches a true & consistent view. If nothing else it's a view that few of those he has opposed over the decades have elaborated clearly or consistently; that consistency is both impressive, & the lack of consistency from those who would curb speech is a colossal disrecommendation.

Certainly officials bare a huge part of the blame for these ongoing travesties against speech & connectivity. But there is a very angry negative current in the world today, a disaffection with technology as a whole, that grows and grows. These rules, alas, reflect the simple public's simple rage, to some degree, I fear.

To be frank, the public rage to me still seems very engineered by a dying media old guard who cannot admit to any of their faults and blames the newcomers for everything especially the consequences of their very own actions.

People as a whole seem stupid, specifically in that they are more easily influenced than ChatGPT. Enough that when told "be angry about X" repeatedly they get angry instead of getting annoyed or angry at constant transparent attempts at emotional manipulation.

It does seem like a loophole that blatantly unconstitutional laws can be passed, enforced, and judged, until a court strikes it down. Who makes the accused whole? This is the legislative version of “move fast and break things”

Some countries use the opposite scheme, where a constitutional court needs to approve laws before they can go into effect. As you can imagine, that approach has a strongly centralizing effect and would not work well in a federal system like the US’.

It's not the job of the lawmakers to follow the constitution. That job belongs to the judges. Lawmakers ought to know what's constitutional and what's not because there's no point in passing a law that will immediately be struck down, but this whole process of passing laws and then having them be reviewed by judges is the process we've landed on for figuring out the boundaries of what's constitutional and what's not.

Actually, it is (I know it’s a Santa Cruz website, but it covers Californian government at all levels): https://sccoclerk.santacruzcountyca.gov/Portals/15/pdfs/oath...

And for Congress and the POTUS (I know it’s a Senate website, but it covers POTUS and the House as well): https://www.senate.gov/about/origins-foundations/senate-and-...

The oath says "support and defend the Constitution". That doesn't make it their job to interpret the constitution.

Your original post said "It's not the job of the lawmakers to follow the constitution". To my ear, "follow" is a lot closer to "support and defend" than it is to "interpret".

That’s not what you said. This is what you said:

> It's not the job of the lawmakers to follow the constitution.

It is exactly their job to both follow and interpret the Constitution in executing their function as legislators and upholding their oath of office. You only go to Court when there is a case or controversy concerning the law, sometimes implicating the Constitution, but willfully passing a law which you know to be unconstitutional is breaking your oath of office, as is signing in such a law if you are the Governor of California or POTUS.

> willfully passing a law which you know to be unconstitutional

This is the sticking point. Do they know for a fact that it's unconstitutional? If they do then I agree they're in the wrong. My argument here is that they don't know it's unconstitutional, that they have some hope that it will manage to pass judicial review, or at least that judicial review will define the exact boundaries of how the constitution applies to the framing of this law and so they can come away with a modified law that goes right up to those boundaries.

All that said, it's a shitty law, and I'd rather get pissed at the lawmakers for attempting to pass this law because of what it's trying to do rather than arguments about constitutionality.

A good litmus test is if you are questioning whether a law is constitutional, you shouldn’t vote in favor of it. That’s upholding your oath. Getting it wrong isn’t breaking your oath, not caring whether it breaks your oath and putting pedal to the metal anyway is. The Constitution really only works when all parties involved are doing that much, which is why it’s egregious when a POTUS is like “yeah this is probably unconstitutional but I’m gonna sign it anyway and see what the courts say”. That’s the mark of a bad President that doesn’t care about his oath.

So yeah, when all else fails, it does end up coming down the courts, and under our own existing laws it shouldn’t be that way because the courts can get it wrong too and sometimes have.

So I’m with you that it’s a shitty law regardless of constitutionality, but it’s extra shitty when it comes with willful oathbreaking. They get away with it largely because our fellow Californians don’t give a shit.

> How have we gotten to a place where our elected officials - sworn to uphold the constitution - willingly and knowingly pass unconstitutional laws just to see how long they can get away with it?

The constitution is not a immutable document and "upholding" it has never meant anything. It is whatever the courts interpet it as and in this case the judge disagreed but you pull a different judge and you might get a different outcome.

> The constitution is not a immutable document

Actually, yes it is. You can amend it, but you can't edit it.

Secondly, there's a body of legal scholarship that your "different judge" has to master. It's not just a matter of policy preference.

immutable had a different meaning in common parlance than it does in datatypes. And even in datatypes usually you end up creating a new "copy" of the thing but with more info appended. The original remains as it was, unchanged (until garbage collection of course)

I don't see what this contributes. Written laws are immutable in the common sense of the word. That's what "legal certainty" means as an ideal: citizens can know what they'll be punished for. If it's unclear talk to your lawyer.

Actually, everything is immutable. All things exist as they are. You are just moving to a different time coordinate (or rather a spacetime point). You can create a changed thing, but the original thing remains there unchanged.

If the Constitution were truly immutable, different iterations of the Supreme Court wouldn't be able to interpret the same words in different ways. In fact, we wouldn't even need a Supreme Court to interpret it. It would always mean exactly what it says in no uncertain terms, with the absolute certainty of mathematical proof.

But it is edited through the interpretation of the Supreme Court. And that's by design - the Constitution was written to be intentionally vague, which makes it unavoidably mutable.

This reads like the transcript of a discussion comprising a bunch of computer science students.

Words are not mathematical symbols. I know you'd like them to be unambiguous, but they're not. First-year law students would probably just smile tolerantly and pat you on the head.

I thought I was clearly arguing that the Constitution is not immutable precisely because of the ambiguity of its language...

> but you can't edit it

That simply requires a prior amendment to make it constitutional.

Then again, there’s absolutely nothing saying you need to follow it at all. That’s just a social construct. You could strike it out entirely tomorrow, and as long as your monopoly on violence remains intact there’s little anyone could do against it.

> as long as your monopoly on violence remains intact there’s little anyone could do against it.

And now people understand why the Second Amendment exists... no?

> You can amend it, but you can't edit it

The Constitution is mutable. By your definition, nothing is immutable because technically the data on the disk is overwritten in a manner technically recoverable by theoretical means.

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