Hacker News Reader

Fifth amendment rights extend beyond the courtroom. I am not legally obligated to make any statements to law enforcement about my own activities. Indeed, border control points are simply yet another instance in which you should "never talk to the police."

https://www.youtube.com/watch?v=6wXkI4t7nuc

You're being recorded, both audio and video, from the moment you enter the building. Making a false statement, even accidentally, is a serious crime. They, of course, are allowed to lie as much as they wish with no repercussions. Ask any lawyer: making any voluntary statements to the police is a bad idea under any circumstances.

Furthermore, my travel within or without the United States is no business of the government's, as evidenced by the fact that there's no law requiring me to provide it to them. Every time this has happened, I have been allowed in to the US. Every time.

The troubling part is that this is really just a demonstration of what the police would do if Terry v. Ohio or the 5th Amendment weren't in place.

They see absolutely no irony in harassing an American, on American soil, under the banner of "protecting America".

Being late, I can cope with. The fact that large federal law enforcement organizations like CBP fundamentally don't get why we have basic rights is the truly scary part.

Sounds like a plan, scale it up! That would surely exact some change in a non-geological timespan.

You're right, it's a total waste of time. Because it's unlikely to ever effect change, we should simply bend to the will of thugs and turn over all the information they ask for: employment data, addresses of friends, travel plans both domestically and abroad, complete contents of our mobile phones (including all text message history, image history, location history, voice notes, emails), et cetera. Volunteering this information to cops is clearly the better choice than exercising our rights because the exercise of rights won't actually get cops to stop being dicks.

PS: You have to count to 1 on the way to 350 million.

I don't think that was sarcasm. I think jacquesm is on your side.

No, I actually completely agree with you, in fact I stopped going to the US for exactly the reasons you list.

note to self: find a way to express lack of sarcasm in text.

"/sarc"

To be fair, as a non-US citizen I think it's fair for the US government to ask you what exactly you plan to do in their country.

To be _fair_, the location of a person's birth should not determine the rights they are entitled to.

Sure, they can ask. They ask citizens. The difference is that citizens get fifth amendment protections and can politely refuse to answer.

If you're a non-citizen coming to visit, refusal means deportation. It's simply racism based on where someone was born, discriminating against people on a trait that they have no control over.

> To be _fair_, the location of a person's birth should not determine the rights they are entitled to.

So we've gone from discussing civil liberties to the abstract idea of a Nation State?

Either way it's not always racism. I'm not American but I'm as WASPy as they come. If I followed your pattern at the US border they'd never let me in, and that is their right.

It's not racism at all, it's territorialism. Rights don't exist in the state of nature. Rights are just agreements between groups of people to take certain things that they have the ability to do in the state of nature off the table. If you're not part of the group, you're not party to the agreement.

Legal rights don't exist, but natural & human rights do. Out of curiosity, are you in favor (in principle) of world federalism? That would eliminate the international state of nature that we have today.

"Legal rights don't exist, but natural and human rights do."

Given that existence of legal rights can be proven empirically [1], whereas existence of natural and human rights is a philosophical quagmire yet to be resolved after thousands of years of inquiry, I'd argue that your statement is false. Well, at least, as false as anything can be outside of a purely axiomatic system.

[1]: Again, as far as such things can be done. E.g., we could probably come to something like an agreement that the Bill of Rights exists and that it describes a set of ostensibly legally guaranteed rights.

Oh, I meant legal rights in the state of nature, the context rayiner was describing - he was the one that said they don't exist therein and I agreed. Natural and human rights function like morals though, they describe what should happen, as opposed to legal rights which describe what will happen, at least given a competent judicial system. Morals exist, right?

"Morals" do exist, in the sense that they are observable states of mind in individual people. You can set up an experiment where you leave a $20 bill on the table, and observe that people don't take it, and call the chemical process in peoples' brains that causes them to act that way "morals."

Sometimes, people with similar moral opinions come together and agree to enforce entitlements consistent with that opinion. These are called "rights." While morals can be demonstrated in the state of nature, "rights" cannot be. There are no "rights" without agreements between people, either explicit or tacit.

I didn't really mean to argue about rights, or maybe I did and I just didn't realize. What you are calling "rights" is properly qualified as "legal rights". I am not suggesting there are legal rights in the state of nature, I am just pointing out that there is an entirely different category of rights and that "rights" refers to both categories. This other category of rights, which I'll call natural/human rights, corresponds to morals, whereas the legal rights category corresponds to laws. Typically laws and thus legal rights have some basis in agreed upon natural/human rights. See Wikipedia, which also lumps human rights in with natural rights:

https://en.wikipedia.org/wiki/Natural_and_legal_rights

Since I'm pretty sure you've encountered the terms natural rights and human rights before, and that you understand that they specify morals without being legal rights, and that we don't basically disagree about how things work, nor do we even disagree philosophically on a wide variety of issues (perhaps importantly that moral absolutism is terrible), I was more curious about whether you think world federalism is a good idea...

Basically in agreement with rayiner's sibling comment, I'd say morals don't exist in the physical/concrete sense that gravity exists, but they do exist in the cultural/behavioral sense that beauty exists. For them to exist more concretely requires some sort of codification and system for enforcement, at which point they effectively become legal rights. Also, in the absence of a specific objective, the concepts "should" and "should not" aren't useful. If we are acting towards different objectives, then our "shoulds" and "should nots" won't necessarily align.

To rephrase this, the sort of absolute existence which you seem to be implying for morals and natural rights is only obtainable within the framework of an axiomatic system. And, the process of codifying one's morals within an actionable axiomatic system transforms them into legal rights.

I never said anything about absolutism, I believe moral relativism is healthy. I disagree that should and should not are useless concepts, because every moral expresses a should or a should not sentiment. Having personal values means you have a personal code of behavior, but it isn't enshrined in law, it's just opinions about how you personally should behave. I agree about the transformation of natural/human rights into legal rights through codification and use of force. Basically, I believe we agree on all the major issues here, except I seem to have communicated some kind of belief in moral absolutism which I hope I have dispelled!

I said should and should not are useless "in the absence of a specific objective". But, as you suggest, they are useful in the context of an objective, e.g. I should not push old ladies into heavy traffic (implicitly: because I prefer not to live in a world where old-lady-traffic-pushing is a commonly accepted pastime and I believe that not indulging in old-lady-traffic-pushing makes such a world more likely to exist in the future, given some assumptions about the dynamics of social systems).

So, I agree that morals express should and should not sentiments. I also agree that individuals can hold morals, in the sense of personal codes of behavior. However, my original point of contention was whether or not natural and human rights exist in the state of nature. A discussion of morals ensued because you implied that an acceptance of the existence of morals was somehow related to an acceptance of the existence of n/h rights.

Morals and n/h rights are fundamentally different in that morals are intra-personal, while rights are necessarily inter-personal. So, while I would accept that morals can exist, in the sense that individuals can desire particular states and derive codes of behavior for making these states more likely to occur, these sorts of morals are not the sort needed to make the functional similarity between morals and n/h rights that you previously suggested meaningful.

These form the key points of our disagreement: that morals act like n/h rights and that n/h rights exist. While you may not have intended to support absolutism, based on the way in which people typically discuss n/h rights, and based on the formal definitions of these terms that I've seen, I'd say that any support of n/h rights is implicitly support of absolutism.

Thanks for explaining, that was quite thorough. I don't understand the distinction between intrapersonal and interpersonal here. Are you essentially saying at least two people have to agree upon something before it's a right, either legal or n/h? But that can't be, because although you can take away my food, clothing, and shelter, you can't take away my belief that I have a human right to those things (i.e. I deserve them), regardless of whether or not anybody agrees with me. Or does it have to do with morals being about my behavior with respect to others, whereas n/h rights would be about others' behavior with respect to me (and others)?

I do understand that it's the absolutists who harp on about n/h rights, I'll try to be more careful about that in the future. It is somewhat absolutist of me to believe that everybody on the planet deserves food, clothing, and shelter in that it's a belief that applies universally, but I won't go so far as to say that you should adopt my beliefs simply because it's somehow incorrect for you to have other beliefs, nor do I expect that our laws will ever satisfy this ideal.

While I can't take away your belief in a human right to something, I can take that something (given sufficient capacity for force). Belief in n/h rights can exist independently of whether or not the rights exist, in the same way that belief in Odin can exist independently of Odin himself.

Though, through morally-guided action you can possibly cause the n/h rights which you believe in (but which don't exist) to be reified as legal rights. Now, given sufficient capacity for force, I may still subvert those rights, but through their codification they have nonetheless gained existence.

The second part of your second paragraph actually closely matches my stance. And, it's precisely the prevalence of (implicit) absolutists who continually frame arguments founded on the assumption that some n/h right or another exists that leads to my irritation when these terms are used (relatively) carelessly. Such arguments are fundamentally flawed and, yet, continue to dominate most discussions concerning politics and economics.

My claim is simply that much as force causes legal rights to exist, belief causes n/h rights to exist. Since you cannot take away my belief (except through brainwashing, but even then I can recover it), you cannot take away my n/h rights.

Or, might makes legally right, belief makes morally right.

It's interesting, because if you look back far enough you'll see I had the opposite argument with somebody else, where I was explaining that force was the only thing that caused legal rights to exist, and he was accusing me of immorality on that basis.

but you are replying to US citizens living abroad. I am pretty sure they are not exempt from paying taxes just because they do not live in the US.

I moved out of the US for this and many other reasons. Every time I visit I have to backup and wipe my phone and laptop before entering, as the courts have ruled that not only do you have zero fourth amendment protections at the border, but also that their ability to search extends to any data you happen to be carrying as well.

It takes me hours to reimage my laptop and restore my phone each time I visit the US. It sucks.

The 5th Amendment covers the right to not have to self-incriminate in the courtroom or anywhere. If you plead the 5th during a border search, however, it essentially means that you are likely to commit criminal activity but don't have to admit to it.

You are probably thinking more of the fourth amendment, which supposedly protects against unlawful search and seizure - including information about your whereabouts, etc.

Also, I probably wouldn't use a YouTube lawyer as my sole reference for doing that sort of thing, just FYI.

Unfortunately internet lawyers are about all we have left. Graduating lawyers are unemployed in record numbers, because folks now normally get all their legal advice online, for better or for worse.

AFAIK, graduate lawyers don't have jobs because there's more supply (more students), not less demand.

That's an effect, not a cause. There are no jobs because large law firms are not hiring. That's because customers are not going to them any more.

The legal industry changed after 2008, at least for larger firms. They started needing to compete on price for one thing, whereas they could largely charge what they liked before. Clients became very selective of what they chose to litigate very quickly, presumably based on cost/benefit analyses they had taken for granted in the past. That doesn't sound like a shift on the supply side to me.

Also, a substantial amount of legal employment used to be in doing things like document review that can now be handled by software. This could be seen to be augmenting the supply factor, since it automates what lawyers used to do.

IIRC, asserting your 5th amendment right does not mean that you have to have committed a crime, but I may just be confusing this with the ability to assert your right to remain silent without your silence being held against you.

A US Citizen can not be denied entry at the border by CBP. He can of course be interrogated by customs and agriculture.

In regards to that US Lawyer, read this always entertaining blog post [original site nomadlaw.com down for quite some time, quoted verbatim here: http://greyenigma.wordpress.com/2012/03/30/i-am-detained-by-...]

> So there is nothing wrong with CBP asking, and nothing wrong with you refusing to answer, and nothing wrong with CBP giving you extra scrutiny, within the limits of the 4th amendment, for refusing to answer the questions.

> It's a pretty big stretch to say that this should limit the police's ability to ask you questions

I'm not talking about the fact that they ask, or that they search my stuff when I decline to answer.

I'm talking about the fact that they then lock me in a room for hours with no food or water, send the bus without me, threaten me with arrest and prosecution, lie to me claiming that I'm legally required to answer their questions, and finally refuse to call me a taxi or tell me the name of the city I was standing in ("I don't know" was the reply of the border guard after I'd asked him after I'd been told I was free to go. "You don't know the name of the city in which you work every day?" "Nope.")

It's simple disrespect and harassment.

It's unfortunate the link to the BYU law review article in a sibling comment is now marked "dead". Perhaps because the author first posted the link, then may have gone back to edit it.

I've only now glanced through the first few pages, but it spells out Fourth and Fifth Amendment rights at border crossings. Unfortunately, it is a review article, not case law, and in some instances appears to rely on dicta. Still, a worthwhile read.

EDIT: Original poster: "nemof". The review article, titled "Rights at United States Borders" was written by Jon Adams, who, judging by the brief bio on the title page, appears to be an experienced and qualified attorney.

The article is here: http://law2.byu.edu/jpl/papers/v19n2_Jon_Adams.pdf. It seems accurate, glancing through it. The material starting at page 354 describes the border search exception to the 4th amendment, and the material starting at page 369 describes how Miranda does not apply to routine questioning at the border.

The right to creatively interpret the constitution?