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  #51  
Old 11-12-2019, 10:34 PM
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Indeed. They had brakes like:

1) Only allowing land-owners to vote. Today, we might view this as being similar to if we only allowed college graduates to vote.
2) Putting the election of Senators into the hands of state representatives - i.e., selected as someone to be trusted by a group of people whom the people had voted that they trusted.
3) Ensuring that the President is not elected by popular vote.

I will note that the modern view was that they completely wrong on 1 and 2, and probably wrong on 3.

We have largely removed the brakes. Was that wrong?

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Wrong according to who? All men are created equal. There is no ubermensch who knows what is and is not moral.
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Morality is not, fundamentally, an objective thing it's subjective. It is the end-result of cultural world views, which can change over time and simple geography.
Hmmm
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  #52  
Old 11-12-2019, 11:07 PM
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The government upholds the laws. In our system, in theory, we have the means to change our laws if we do not like them. Random executions (by vote or not) are not legal.
  #53  
Old 11-13-2019, 01:15 PM
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Hmmm
Indeed.

It's a hard problem. (And no, those quotes are not in conflict with one another.)
  #54  
Old 11-13-2019, 02:41 PM
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Indeed. They had brakes like:

1) Only allowing land-owners to vote. Today, we might view this as being similar to if we only allowed college graduates to vote.
2) Putting the election of Senators into the hands of state representatives - i.e., selected as someone to be trusted by a group of people whom the people had voted that they trusted.
3) Ensuring that the President is not elected by popular vote.

I will note that the modern view was that they completely wrong on 1 and 2, and probably wrong on 3.

We have largely removed the brakes. Was that wrong?
These things weren't designed as brakes. They had no effect in slowing down legislation or making people more deliberative.

They were designed to maintain the interests of a minority over the interests of the majority.
  #55  
Old 11-13-2019, 07:53 PM
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There is a prohibition against punishing a person in cruel and unusual ways.

Leonard is not being punished any more than an 18 year old boy who is drafted into the army and sent on a suicide mission.

The Supreme Court generally does not view itself as having the right to make an opinion on the merit of an argument. If Congress says that bubble gum causes civil unrest and they want to ban it on that basis, the Supreme Court will generally not ask for proof that bubble gum does cause civil unrest, they will simply verify that there was a governmental purpose served by the law. And, similarly, if the White House says that all red heads in the country are plotting an uprising and need to be interned, current Supreme Court opinion is that all the red heads have to go to an internment camp and the White House does not need to prove its case that this was a legitimate fear, merely that their purpose served a governmental purpose.

This is how the Travel Ban ended up being accepted by the Court.

While it is certainly possible that the Supreme Court would decide that having Leonard killed, simply to prove the government's fidelity to the will of the people, is not a legitimate government purpose or that the penumbra of the Bill of Rights would have us hold that Leonard's unstated right to life exceed this governmental purpose, I am not currently aware of a "general right to be alive" clause and the closest case on the subject that I can think of is Roe v Wade...which chose the other direction.



There are posters who have, on a variety of topics, stated things along the lines that the will of the people - popular votes, etc. - should take precedence over the votes of a small group of people in Washington.

From what I have seen, it's fairly common in law to use edge cases to demonstrate that certain laws or views of the law are insane if you follow them to their logical conclusion. With Presidential immunity, for example, we might say that the President needs an amount of immunity in order to be able to do his job. But, following that rule blindly would get us to the place where the President can shoot someone dead, in the middle of the street, and he couldn't be held accountable for it. The general principal is clearly not an absolute and any world view that treats it that way is, similarly, a feat of madness.

I'll go a few more tries at arguing the case and, presuming that I fail to get traction, fall back to a less extreme case and see if there's an argument to be made at that level. I'm narrowing in on the cutoff point.
Nice dodge to avoid my point.
Your entire scenario rests on a declaration that a president can call for a plebiscite on an issue. There is no provision for such an action in the Constitution.
  #56  
Old 11-13-2019, 08:35 PM
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There is no ubermensch who knows what is and is not moral.
Dude. I'm right here.

  #57  
Old 11-13-2019, 08:43 PM
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  #58  
Old 11-13-2019, 10:40 PM
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Indeed.

It's a hard problem. (And no, those quotes are not in conflict with one another.)
Whatever you say chief, it's your chicken, I'm just gonna hold the wings.
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  #59  
Old 11-14-2019, 01:49 PM
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Seems to me the thought problem breaks down right here:
"they simply want to prove that the government will act in accordance with the public will."
Well, that's nice. Who asked them to prove that, or how was it demonstrated that the public had reason to doubt the White House (or actually more appropriately, the entire government, as they are considered co-equal tripartite entities) does NOT act in accordance with the public will? Before we kill Lenny, the "will of the people" must first make manifest its belief that the government does not, in fact, act in accordance with the public will. In the system in place in the U.S., via majority vote of the elected representatives, with the result validated by the judicial branch, it might be eventually determined that, yes, the public does not believe the government acts in accordance with the public will. Once (if) the public will's absolute concern that the government does not act in accordance is thus established, it would then be necessary via the same process to determine that the public's will is that there must be some test of the government's willingness to act in accordance with said public will, or, as an alternative, to just continue to put up with the government NOT acting in accordance with the public's will (Duh!). Assuming the will of the people is that there is a inescapable need for some valid and reliable test that would demonstrate the government's actions do, in fact, make manifest the will of the people, the public will must then express its preferred mechanism by which the government would offer proof beyond a reasonable doubt that it DOES, in fact, act in accordance with the public will to the extent that the public will deems the results satisfactory for said purpose (that the government acts in accordance with...). Many, many different mechanisms might be proposed and debate surely ensue (I, for one, would propose sacrifice by self-immolation as an adequate, even desirable demonstration of fealty to the public will), which would (eventually) lead once again to selection of a "public will concordance validation" that would only be deemed adequate via the result of a vote of said elected representatives with validation, yada yada. If all that results in a death lottery that Lenny loses, well, OK, so be it. I find us voting on who stays in power on a regular basis to be a much more acceptable mechanism, (a point which I am sure Lenny shall agree with) as well as having the bonus of already being in place- and producing government of the people, by the people, and for the people.
As thought problems go, this one just seems to be a remake of "The Running Man"; Arnold's gonna be a hard sell as a dude named "Lenny".
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  #60  
Old 11-14-2019, 01:52 PM
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The laws exist by and for the people and the government exists by and for the people.
Not exactly; at least not directly anyway. Even if the popular will was to have someone murdered, that doesn't really matter; as a rule of law nation, that popular will would run afoul of the Fifth Amendment to the Constitution.

Leonard would have to be indicted, tried and found guilty of something worthy of capital punishment before he could be executed, regardless of what some random referendum might say.

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
And I also point out that regardless of any referendum to the contrary, there's a defined legal procedure for amending the Constitution as well, so it's not like the popular will could just amend the Constitution to allow them to murder Leonard either.
  #61  
Old 11-14-2019, 02:43 PM
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Nice dodge to avoid my point.
Your entire scenario rests on a declaration that a president can call for a plebiscite on an issue. There is no provision for such an action in the Constitution.
Oh, sorry, I thought you were complaining about the murder not the vote.

I don't believe that there's any restriction on holding such a vote. Internment was by simple executive order. Granted, there was a war going on at the time, so that may have used a State of Emergency special power as a foundation, I'm not sure.

But, I'll note, even if we determine that this action would be struck down by the Supreme Court, the question is whether it is right for a minority - like the Supreme Court, or Congress, or anyone - to countermand the clear declarations of the people. And if that is right and fair then, on what philosophical view of the Constitution, is that justifiable?

If the power of the Constitution lies in the consent and demands of the people, then how does it win against them?
  #62  
Old 11-14-2019, 08:41 PM
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The government is supposed to uphold and execute the laws of our country not carry out the will of the people.
How about, 'the government is supposed to uphold the laws of our country and not execute its people'
  #63  
Old 11-15-2019, 12:35 AM
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Not exactly; at least not directly anyway. Even if the popular will was to have someone murdered, that doesn't really matter; as a rule of law nation, that popular will would run afoul of the Fifth Amendment to the Constitution.
The 5th Amendment only applies if Leonard is being charged with a crime. Leonard is not being punished nor charged with a crime.

And, ultimately, the Bill of Rights is a commitment to the people by the government. In this particular case, the people have voted against their rights.

Say, for example, that you and I put together a contract and, in the contract, I promise to never slap you. Some time later, you are bored and you tell me, "Ignore the contract. I'm bored and falling asleep. Slap me." Maybe I even get it in writing from you that you're overruling the contract temporarily.

Can I slap you, in this instance?

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And I also point out that regardless of any referendum to the contrary, there's a defined legal procedure for amending the Constitution as well, so it's not like the popular will could just amend the Constitution to allow them to murder Leonard either.
As I understand it, given a sufficient popular will, any part of the Constitution can and should be amended.

Granted, it's not quite as direct as that, but there's nothing to stop the people from electing murderous bastards into government.
  #64  
Old 11-15-2019, 01:50 AM
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The 5th Amendment only applies if Leonard is being charged with a crime. Leonard is not being punished nor charged with a crime.

And, ultimately, the Bill of Rights is a commitment to the people by the government. In this particular case, the people have voted against their rights.

Say, for example, that you and I put together a contract and, in the contract, I promise to never slap you. Some time later, you are bored and you tell me, "Ignore the contract. I'm bored and falling asleep. Slap me." Maybe I even get it in writing from you that you're overruling the contract temporarily.

Can I slap you, in this instance?
Yes, you can. Or, at least, the first contract does not prevent you from slapping me, because it has now been superseded by a second contract. Both contracts derive theif force and legitimacy from the agreement between you and me.

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As I understand it, given a sufficient popular will, any part of the Constitution can and should be amended.
Only if the "sufficient popular will" is expressed through the ratification process. The popular will has established a process for varying the constitution. It's the established popular will that the popular will should not be given effect to in ways that would violate the constituion as it stands. Therefore, if the popular will favours the doing of something currently prohibited by the constitution, the popular will needs be expressed in a way that includes the making of the necessary constitutional amendment.

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Granted, it's not quite as direct as that, but there's nothing to stop the people from electing murderous bastards into government.
Plainly not; such thing have happened frequently in many countries. It doesn't follow that there is a political, legal or moral case in favour of those murderous bastards committing murder. They haven't been elected to commit murder, but to discharge the duties of the offices to which they have been elected. If the people want to elect someone to commit murder, they must first establish an elective office whose duties include the commission of murder.
  #65  
Old 11-15-2019, 07:30 AM
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The 5th Amendment only applies if Leonard is being charged with a crime. Leonard is not being punished nor charged with a crime.
Do you have a cite that the government is free to violate a citizen's due process so long as they don't charge that citizen with a crime?
  #66  
Old 11-15-2019, 07:59 AM
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Wouldn't an easier and more realistic thought experiment for determining if the US government cares about the Will of the People be something like: Who won the popular vote for president, how many people are represented by the majority party in the senate, what is the proportion of house members of the majority party in the house versus the proportion of voters?

The Electoral College, the Senate, and Gerrymandered House Districts demonstrate that the Will of the People is not a primary concern. And in my scenario, no one has to die.
  #67  
Old 11-15-2019, 08:04 AM
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If the power of the Constitution lies in the consent and demands of the people, then how does it win against them?
If "the people" wish to act in a way that violates the Constitution, there are processes within the Constitution to amend it. And if the will of the people is sufficiently great as to approve an amendment, then the Constitution will change to meet the new will of the people. To act otherwise is to say that the law has no force, no legitimacy, no power, and thus the entire rule of law is completely undermined. If the people were to "win" against it, the victory would be entirely Pyrrhic.

The following dialogue from A Man For All Seasons seems relevant here:

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I'd cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”


We uphold the law - including the Constitution - to protect us when the Devil turns round on us. Because the alternative is the failure of civilization itself.
  #68  
Old 11-15-2019, 02:46 PM
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The "is it legal/constitutional" argument seems like an irrelevant nitpick. Suppose the constitution was amended, the legislature passed all the necessary laws, and popular support was behind the idea.

Both slavery and the Holocaust were legal, and depending on what population you were looking at, well supported by a clear majority. Does that matter? Or is the fact that something is legal and "the will of the people" immaterial when the question at hand is whether we should kill an innocent man? And where does that leave our other laws? Is it suddenly better that, instead of killing a man for no reason, the populace and legal machinery mandate that an innocent man should be caged for possessing controlled substances? Or that we should bomb some poor people in another country because some rich people who won a popularity contest think that's the best way to protect the profits of their biggest donors?

It's ultimately a question of the legitimacy of state power. The Constitution states that the government derives its power from the consent of the governed. But does it? How is that consent gauged, and how many must consent? Can I consent to another man's punishment? Or must he grant consent himself? The Universal Declaration of Human Rights states that "The will of the people shall be the basis of the authority of government". But what does that mean? 50%+1 person? Two-thirds majority? Unanimous? Or that the government only holds power over those who consent to give it power, and any person may opt out? There's a lot of talk about the social contract, but I never got my copy and I haven't signed it. So why should I be bound by it?
  #69  
Old 11-15-2019, 02:54 PM
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Do you have a cite that the government is free to violate a citizen's due process so long as they don't charge that citizen with a crime?
If there is no crime then what due process would there be?

If you are drafted into the military and immediately designated for a suicide mission group, by random lot, you are not being punished for a crime, that's just the course of your life that the government selected for you on the basis of the needs and aims of your representatives, who you elected.

They don't have to prove that you "deserve" to be sent to war or that you "deserve" to be put in a suicide mission group, they just have to have a governmental purpose behind the act.

If the government decides to take all of your land from you, they can do it.

Now, that has been litigated to say that they have to pay you some amount of money for taking your land. And, likewise, the Supreme Court might decide that the government has to pay Leonard's family as compensation for his service to the country, they might decide that there is a general right to life that the White House is violating with this law.

But the question was not, "Is this legal?" Nor was it, "Would the Supreme Court decide that this is legal?" The question is, why does the government get to overrule the people if the whole basis of the government's power and rights is that the people have granted it, in the understanding that the government serves them? And more importantly, should the voice of the people overrule that of the government?
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Old 11-15-2019, 04:01 PM
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If there is no crime then what due process would there be?
Okay, let's back up. What exactly do you think due process is? Do you think it's only what happens after you're charged with a crime?
  #71  
Old 11-16-2019, 03:41 AM
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Okay, let's back up. What exactly do you think due process is? Do you think it's only what happens after you're charged with a crime?
https://en.wikipedia.org/wiki/Due_process
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Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.
Extrajudicial executions certainly violate due process. Drop that candy bar! [BANG]
  #72  
Old 11-16-2019, 05:44 PM
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Okay, let's back up. What exactly do you think due process is? Do you think it's only what happens after you're charged with a crime?
On a reread, I concur, "nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."

I was reading it "in a criminal case" -> "you won't be deprived of X without due process". But I believe that you are correct that it should be read, "In a criminal case OR in a case where you would be deprived of X" -> "due process must ensue".

But, like I said, it's possible that the Supreme Court would decide that due process means that we've established a solid process to ensure that Leonard isn't being targeted for any particular reason that isn't justified, they might say that there has to be a payout to the family, and they might decide that the state interest of ensuring the people that they are being listened to is overly arbitrary and isn't a legitimate state purpose and that there is no such thing as a due process that would allow it to occur.

No matter what, in any case, are you going to get anywhere on the question through legalism. The question isn't about legalities and any answer I give to justify the hypothetical - correct or invalid as may be - is simple "color". It fleshes out the hypothetical, but doesn't do anything to move forward on the actual topic of discussion. I could come up with a whole backstory that makes the OP less absurd and firmly plants it in plausible legalities. You can safely trust that that's true. Doing so, however, simply wastes time on color.

Should the will of the people supercede the government's and the law?

Last edited by Sage Rat; 11-16-2019 at 05:46 PM.
  #73  
Old 11-16-2019, 06:01 PM
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This is the new dumbest hypothetical I've ever seen posted here. There is no lawful authority for this supposed "election" or execution.
This.
  #74  
Old 11-18-2019, 08:36 AM
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In the United Kingdom, it is 16. If I'm a British 24 year old with a 17 year old girlfriend and we fly to the United States, I've gone from being a young man in a wholesome relationship to being a pedophile who commits sex crimes

24 y/o male (or female) with a 17 y/o girlfriend isn't as wholesome as you might imagine.
  #75  
Old 11-18-2019, 11:37 AM
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The 5th Amendment only applies if Leonard is being charged with a crime. Leonard is not being punished nor charged with a crime.
I'm not so sure of that; the pertinent part of the amendment reads:

"No person shall be ... deprived of life, liberty, or property, without due process of law"

That part of the 5th amendment is there SPECIFICALLY to prevent what you're describing here- the government just executing people, imprisoning people, or confiscating their property willy-nilly. The 5th amendment puts a brake on that by requiring due process.


The amendment doesn't say a thing about whether or not they're being charged with a crime- it says very simply that the government can't kill you, imprison you, or take your stuff without due process of law, which generally means a trial.

So in order to deprive Leonard of life in your hypothetical, they'd HAVE to charge him with something with the death penalty as an option, find him guilty, and sentence him to death.
  #76  
Old 11-19-2019, 10:32 AM
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On a Wednesday, the White House issues a national vote to decide whether to murder Leonard, a grocer in Louisville. There is no crime that Leonard has committed - he was randomly selected - they simply want to prove that the government will act in accordance with the public will.

Greater than 50% and Leonard will be captured and executed.

The vote is held and, the American public having come to doubt that the government was working as demanded, have voted 50.2% for the death of Leonard.

Should Leonard die?
If we repealed the constitution and eliminated basic human rights and wrote a new constitution saying it would be OK to kill Leonard...

then, he should still not die. There is an objective morality and murdering an innocent citizen runs counter to that.
  #77  
Old 11-19-2019, 05:17 PM
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I am not currently aware of a "general right to be alive" clause and the closest case on the subject that I can think of is Roe v Wade...which chose the other direction.
What about the fifth amendment:

No person shall be held to answer for a capital ... crime, unless on a presentment or indictment of a grand jury; ... nor shall any person ... be deprived of life, liberty, or property, without due process of law.

I don't think the proposed vote is due process of law.
  #78  
Old 11-19-2019, 11:25 PM
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I am not currently aware of a "general right to be alive" clause...
Nothing in the US Constitution ensures a right for those born to continue living. The 2nd amendment seems to grant the power to kill or be killed, and that's about it.

Back to the OP. Can a US government choose to arbitrarily execute someone? Sure, it happens all the time, without bothering with polls. The OP's model suggests a game show format, maybe "Hang-em Or Not". A victim is selected for doom. Pro bono attorneys try to intervene but hey, this is entertainment! "Sorry, you didn't beat the reaper." ZAP!
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