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Thread: "Qualified Immunity" was literally a mistake

  1. #1

    Exclamation "Qualified Immunity" was literally a mistake

    I'm not sure what you call it when the spirit of the law is ignored, but it appears that "qualified immunity" is what you call it when the spirit and the letter of the law is ignored.

    16 Crucial Words That Went Missing From a Landmark Civil Rights Law
    The phrase, seemingly deleted in error, undermines the basis for qualified immunity, the legal shield that protects police officers from suits for misconduct.
    https://www.nytimes.com/2023/05/15/u...eme-court.html
    [archive link: https://archive.is/23Fyt]
    Adam Liptak (15 May 2023)

    In a routine decision in March, a unanimous three-judge panel of a federal appeals court ruled against a Texas inmate who was injured when the ceiling of the hog barn he was working in collapsed. The court, predictably, said the inmate could not overcome qualified immunity, the much-criticized legal shield that protects government officials from suits for constitutional violations.

    The author of the decision, Judge Don R. Willett, then did something unusual. He issued a separate concurring opinion to draw attention to the “game-changing arguments” in a recent law review article, one that seemed to demonstrate that the Supreme Court’s entire qualified immunity jurisprudence was based on a mistake.

    “Wait, what?” Judge Willett wrote, incredulous.

    In 1871, after the Civil War, Congress enacted a law that allowed suits against state officials for violations of constitutional rights. But the Supreme Court has said that the law, usually called Section 1983, did not displace immunities protecting officials that existed when the law was enacted. The doctrine of qualified immunity is based on that premise.

    But the premise is wrong, Alexander A. Reinert, a professor at the Benjamin N. Cardozo School of Law, wrote in the article, “Qualified Immunity’s Flawed Foundation,” published in The California Law Review.

    Between 1871, when the law was enacted, and 1874, when a government official produced the first compilation of federal laws, Professor Reinert wrote, 16 words of the original law went missing. Those words, Professor Reinert wrote, showed that Congress had indeed overridden existing immunities.

    Judge Willett considered the implications of the finding.

    “What if the Reconstruction Congress had explicitly stated — right there in the original statutory text — that it was nullifying all common-law defenses against Section 1983 actions?” Judge Willett asked. “That is, what if Congress’s literal language unequivocally negated the original interpretive premise for qualified immunity?”

    The original version of the law, the one that was enacted in 1871, said state officials who subject “any person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom or usage of the state to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.”

    The words in italics [and bolded - OB], for reasons lost to history, were omitted from the first compilation of federal laws in 1874, which was prepared by a government official called “the reviser of the federal statutes.”

    “The reviser’s error, whether one of omission or commission, has never been corrected,” Judge Willett wrote.

    The logic of the Supreme Court’s qualified immunity jurisprudence is that Congress would not have displaced existing immunities without saying so. But Professor Reinert argued that Congress did say so, in so many words.

    “The omitted language confirms that the Reconstruction Congress in 1871 intended to provide a broad remedy for civil rights violations by state officials,” Professor Reinert said in an interview, noting that the law was enacted soon after the three constitutional amendments ratified after the Civil War: to outlaw slavery, insist on equal protection and guard the right to vote.

    “Along with other contemporaneous evidence, including legislative history, it helps to show that Congress meant to fully enforce the Reconstruction Amendments via a powerful new cause of action,” Professor Reinert said.

    Judge Willett, who was appointed by President Donald J. Trump, focused on the words of the original statute “in this text-centric judicial era when jurists profess unswerving fidelity to the words Congress chose.”

    Qualified immunity, which requires plaintiffs to show that the officials had violated a constitutional right that was clearly established in a previous ruling, has been widely criticized by scholars and judges across the ideological spectrum. Justice Clarence Thomas, for instance, wrote that it does not appear to resemble the immunities available in 1871.

    Professor Reinert’s article said that “is only half the story.”

    “The real problem,” he wrote, “is that no qualified immunity doctrine at all should apply in Section 1983 actions, if courts stay true to the text adopted by the enacting Congress.”

    Joanna Schwartz, a law professor at the University of California, Los Angeles, and the author of “Shielded: How the Police Became Untouchable,” said that “there is general agreement that the qualified immunity doctrine, as it currently operates, looks nothing like any protections that may have existed in 1871.” The new article, she said, identified “additional causes for skepticism.”

    She added that “Judge Willett’s concurring opinion has brought much-needed, and well-deserved, attention to Alex Reinert’s insightful article.”

    Judge Willett wrote that he and his colleagues are “middle-management circuit judges” who cannot overrule Supreme Court decisions. “Only that court,” he wrote, “can definitively grapple with Section 1983’s enacted text and decide whether it means what it says.”

    Lawyers for the injured Texas inmate, Kevion Rogers, said they were weighing their options.

    “The scholarship that Judge Willett unearthed in his concurrence is undoubtedly important to the arguments that civil rights litigants can make in the future,” the lawyers, Matthew J. Kita and Damon Mathias, said in a statement.

    “Normally,” they added, “you cannot raise a new argument for reversal for the first time on appeal, much less at the Supreme Court of the United States. But one would think that if the Supreme Court acknowledges that it has been reciting and applying the statute incorrectly for nearly a century, there must be some remedy available to litigants whose judgments are not yet final.”
    Last edited by Occam's Banana; 05-27-2023 at 01:51 AM.
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  3. #2

  4. #3
    "Qualified Immunity" was literally a mistake
    Three questions:

    1. Do you think the mistake was accidental or deliberate?
    2. What's the over/under on this just being shrugged off as "Oops! Oh, well. Too late now."?
    3. How long until Congress "fixes" the problem by explicitly legislating "qualified immunity" - or will they even bother (see 2.)?


    Here's "Section 1983" as it currently stands:

    42 U.S. Code § 1983 - Civil action for deprivation of rights

    Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

  5. #4
    orwell was right
    FLIP THOSE FLAGS, THE NATION IS IN DISTRESS!


    why I should worship the state (who apparently is the only party that can possess guns without question).
    The state's only purpose is to kill and control. Why do you worship it? - Sola_Fide

    Baptiste said.
    At which point will Americans realize that creating an unaccountable institution that is able to pass its liability on to tax-payers is immoral and attracts sociopaths?

  6. #5
    Quote Originally Posted by Occam's Banana View Post
    [*] What's the over/under on this just being shrugged off as "Oops! Oh, well. Too late now."?
    I'd bet the farm on this one
    It's all about taking action and not being lazy. So you do the work, whether it's fitness or whatever. It's about getting up, motivating yourself and just doing it.
    - Kim Kardashian

    Donald Trump / Crenshaw 2024!!!!

    My pronouns are he/him/his

  7. #6
    A couple of observations.

    Let us begin with the relatively trivial point of "error". This was no error of omission. When properly considered, anyone with an IQ will immediately see that the implications of those sixteens words are quite literally staggering, and I cannot overstate this point. This omission was by all means intentional and malevolently committed, make no mistake about that. Whether the Reviser took it upon himself to commit this most heinously treasonous omission for which he should have been drawn and quartered, or some third party strong-armed him into it, the actual Law (and I intentionally capitalize "Law" because in this case the statute qualifies as such) remains what it is and by all means must be restored to perfection. This should be demanded in shrieking stridency by every American on the planet, regardless of political affiliation. Even the lefties should be out burning down cities or whatever the hell it is they do these days, to make their voice heard on this matter.

    Secondly, and in a way more significantly as hinted at above, the implications of the restoration of these sixteen words are beyond mere numbers.

    What those words do is to reiterate and reinforce the specifications of the BoR with great force. The implications are deep, broad, and extend to the visible horizon, touching literally everything in our current jurisprudence. It destroys ALL unconstitutional Acts passed into statutory law. It even destroys the Article I power to tax.

    A man walking armed down a Manhattan street, arrested and charged for violating Sullivan, could then sue the pants off the city and bring criminal charges against basically everyone involved in the crimes committed against his sovereign rights.

    The dweeb growing dope in his mom's basement could do the same when the cops came crashing through the doors, shooting the dog and dragging him off to the hoosegow to face fed charges.

    The list of violations currently de rigeur is huge. The avenues of redress would be at least equal to such a list.

    Further implications would extend to the ways in which police operated in the future. Imagine cops actually engaging their brains prior to acting. Difficult, I know, but if they had any basic sense, they would have to alter themselves in that way, torture that it might be for them.

    This is a staggering discovery, and nothing less than that. It is not quite the strong sauce of my Amendment XXVII, but the spirit is right there with it. If this issue were to be addressed and treated properly, of which I hold grave doubt that it would be, EVERYTHING in America would change at a radical level. It would be the best thing to have happened to this nation since its founding, assuming "government" would actually follow the Law, which too stands in deep question. But if so, life in America would stand to change dramatically for the better, assuming once again the fabric of Americans was up to snuff. While I believe it would not be the case with the mean man, that would be of little consequence because I do believe that enough of us would be of the right cloth to take the bastards to task. The proverbial 3% would be enough to drive the tyrant to suicide for the grief and harassment we could heap upon him.

    Then thirdly come the possibilities for citizen-held control over the likes of police. If those words are taken literally, then one would be rightly empowered to take the Law into their own hands by, for example, blasting the ghosts from the carcasses of those police and other agents who dare violate. From the initial such cases, I could see new Law arising to reaffirm the authority pursuant to the preservation of such rights from diminution, disparagement, and trespass by those in "government" such that Theye and their henchmen would shiver at the mere thought of committing crimes against those whom they swore to serve in good faith and competence.

    It will be interesting to see how this develops, if at all. How I wish to live to see the day Theye are crushed under the heel of right and proper sense, decency, and justice. If it happens, Theye will alter their ways in short order... that, or Theye will go pedal to the metal in a final stab to claim what they falsely believe to be theirs and then we the people will be put to the real test of that of which we are made.

    I live for that day.
    Last edited by osan; 05-28-2023 at 07:11 AM.
    freedomisobvious.blogspot.com

    There is only one correct way: freedom. All other solutions are non-solutions.

    It appears that artificial intelligence is at least slightly superior to natural stupidity.

    Our words make us the ghosts that we are.

    Convincing the world he didn't exist was the Devil's second greatest trick; the first was convincing us that God didn't exist.

  8. #7
    Quote Originally Posted by Occam's Banana View Post
    Do you think the mistake was accidental or deliberate?
    You can't even be serious. There is no possible way that this was accidental. Not even the remotest possibility exists.

    What's the over/under on this just being shrugged off as "Oops! Oh, well. Too late now."?
    It is high likelihood, but in this case the carried risk is also high, if optics are in any way important to SCOTUS, which history seems to suggest they are not.

    How long until Congress "fixes" the problem by explicitly legislating "qualified immunity" - or will they even bother (see 2.)?
    The out would be this: SCOTUS hears relevant case, decides correctly, and Congress then destroys what little credibility remains them and does just as you suggest. The reql question would then rest once again with SCOTUS, after which and assuming the right outcome, would leave Congress in a bit of a bind. I would not, however, trust them to give up so readily. They could attack this at a policy-level, which would be a sucky remedy, but still would perhaps be better than nothing. I would expect them to attempt an Amendment which, if successfully ratified, would de-ball SCOTUS on the question. That would be the ultimate as it would by definition be "constitutional".

    In Marbury, SCOTUS addressed only "law" repugnant to the Constitution. It did not address internal conflict between Constitutional elements. I have no idea whether any other ruling addressed this issue. For example, the power to lay and collect taxes CLEARLY violates the Fourth and Ninth Amendments at the very least. This sort of conflict should always and without exception find for the rights of the individual over the powers of "government".

    This is why my Amendment XXVIII should be presented and ratified. It will never happen, but it would be the bulletproof method of ensuring "government" remains on a very short leash. We must have the ability to destroy all threats to our individual sovereignties.


    Here's "Section 1983" as it currently stands:

    42 U.S. Code § 1983 - Civil action for deprivation of rights

    Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
    Always the weasel-worded exceptions.

    Mors Tyrannis, Nulla Misericordia
    freedomisobvious.blogspot.com

    There is only one correct way: freedom. All other solutions are non-solutions.

    It appears that artificial intelligence is at least slightly superior to natural stupidity.

    Our words make us the ghosts that we are.

    Convincing the world he didn't exist was the Devil's second greatest trick; the first was convincing us that God didn't exist.

  9. #8
    Quote Originally Posted by osan View Post
    You can't even be serious. There is no possible way that this was accidental. Not even the remotest possibility exists.

    It is high likelihood, but in this case the carried risk is also high, if optics are in any way important to SCOTUS, which history seems to suggest they are not.

    The out would be this: SCOTUS hears relevant case, decides correctly, and Congress then destroys what little credibility remains them and does just as you suggest. The reql question would then rest once again with SCOTUS, after which and assuming the right outcome, would leave Congress in a bit of a bind. I would not, however, trust them to give up so readily. They could attack this at a policy-level, which would be a sucky remedy, but still would perhaps be better than nothing. I would expect them to attempt an Amendment which, if successfully ratified, would de-ball SCOTUS on the question. That would be the ultimate as it would by definition be "constitutional".

    In Marbury, SCOTUS addressed only "law" repugnant to the Constitution. It did not address internal conflict between Constitutional elements. I have no idea whether any other ruling addressed this issue. For example, the power to lay and collect taxes CLEARLY violates the Fourth and Ninth Amendments at the very least. This sort of conflict should always and without exception find for the rights of the individual over the powers of "government".

    This is why my Amendment XXVIII should be presented and ratified. It will never happen, but it would be the bulletproof method of ensuring "government" remains on a very short leash. We must have the ability to destroy all threats to our individual sovereignties.
    Back in the day it was setup so that SCOTUS would be the weakest of the 3 branches. That said, I'm curious if this is something SCOTUS gets to decide or is it Congress that has the authority to correct "errors"?


    Quote Originally Posted by osan View Post
    Always the weasel-worded exceptions.

    Mors Tyrannis, Nulla Misericordia
    This is 'Murica speak English.
    Last edited by tebowlives; 05-28-2023 at 07:39 PM.



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  11. #9
    Quote Originally Posted by tebowlives View Post
    Back in the day it was setup so that SCOTUS would be the weakest of the 3 branches. That said, I'm curious if this is something SCOTUS gets to decide or is it Congress that has the authority to correct "errors"?
    I think I covered the possibilities. The "big one" would be a constitutional amendment, the toughest to pull off, but SCOTUS-proof.


    This is 'Murica, dammit. Speak 'Murkin.
    Fixed that fer ye.
    Last edited by osan; 06-01-2023 at 05:03 PM.
    freedomisobvious.blogspot.com

    There is only one correct way: freedom. All other solutions are non-solutions.

    It appears that artificial intelligence is at least slightly superior to natural stupidity.

    Our words make us the ghosts that we are.

    Convincing the world he didn't exist was the Devil's second greatest trick; the first was convincing us that God didn't exist.

  12. #10
    Quote Originally Posted by osan View Post
    For example, the power to lay and collect taxes CLEARLY violates the Fourth and Ninth Amendments at the very least.
    Given that authorizing the federal government to tax was one of the most significant features of the Constitution, it's hard to see how the 9th Amendment has any application unless you're going to claim that there was some sort of right not to be taxed in 1789, which would be belied by the fact that people were already being taxed by the States. In addition, the 4th Amendment only prohibits unreasonable searches and seizures, and since there's an explicit grant of authority to tax and since enforcement of any tax is necessarily and reasonably going to involve the ability to examine records, the 4th isn't violated solely by the taxing power.

    I approved from the first moment, of the great mass of what is in the new constitution, the consolidation of the government, the organisation into Executive, legislative and judiciary, the subdivision of the legislative, the happy compromise of interests between the great and little states by the different manner of voting in the different houses, the voting by persons instead of states, the qualified negative on laws given to the Executive which however I should have liked better if associated with the judiciary also as in New York, and the power of taxation. I thought at first that the latter might have been limited. A little reflection soon convinced me it ought not to be. Thomas Jefferson, letter to Francis Hopkinson, March 13, 1789
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
    Anonymous

  13. #11
    Quote Originally Posted by Occam's Banana View Post
    I'm not sure what you call it when the spirit of the law is ignored, but it appears that "qualified immunity" is what you call it when the spirit and the letter of the law is ignored.
    The law has been hiding in plain sight: http://memory.loc.gov/cgi-bin/ampage...7.db&recNum=54
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
    Anonymous

  14. #12
    Quote Originally Posted by Sonny Tufts View Post
    Given that authorizing the federal government to tax was one of the most significant features of the Constitution, it's hard to see how the 9th Amendment has any application unless you're going to claim that there was some sort of right not to be taxed in 1789, which would be belied by the fact that people were already being taxed by the States. In addition, the 4th Amendment only prohibits unreasonable searches and seizures, and since there's an explicit grant of authority to tax and since enforcement of any tax is necessarily and reasonably going to involve the ability to examine records, the 4th isn't violated solely by the taxing power.
    Your argument founds on assumptions false, and ignores the conflict between the granted power and the inherent right. Where a granted power conflicts with an inherent right, there is no argument to be made in favor of the power over the right. The very notion of holding a granted power above an inherent right tap-dances merrily past absurdity.

    My rights trump any "governmental" power. Period. My rights, and yours, are inherent to what we are. "Government" powers are synthetic and perforce arbitrary. It should require no hint of rocket surgery to dope out which of the two stands supreme. Proponents of the opposite view can rant and fart and vomit their idiocies contrary to glaring truth until the cows come home - to put a synthetic, and frankly a bull$#@! power above the inborn rights of a man, any man, is raving insanity. It is stupidity so wild as to defy words.
    freedomisobvious.blogspot.com

    There is only one correct way: freedom. All other solutions are non-solutions.

    It appears that artificial intelligence is at least slightly superior to natural stupidity.

    Our words make us the ghosts that we are.

    Convincing the world he didn't exist was the Devil's second greatest trick; the first was convincing us that God didn't exist.

  15. #13
    Quote Originally Posted by osan View Post
    My rights trump any "governmental" power. Period. My rights, and yours, are inherent to what we are. "Government" powers are synthetic and perforce arbitrary. It should require no hint of rocket surgery to dope out which of the two stands supreme. Proponents of the opposite view can rant and fart and vomit their idiocies contrary to glaring truth until the cows come home - to put a synthetic, and frankly a bull$#@! power above the inborn rights of a man, any man, is raving insanity. It is stupidity so wild as to defy words.
    You were making a legal argument based on the 4th and 9th Amendments, not upon some notion of Natural Law. Your argument would be valid only if you believe the people in 1789 had a right to not be taxed. Yet they gave their state governments the authority to tax and their state governments (i.e., the agents of the people) gave the federal government the authority to tax. So it's pretty clear the people didn't feel that they had the right to live in a society and be free of any obligation to pay for its upkeep. Otherwise, they never would have authorized the states or the federal government to tax and would have eventually descended into little anarchic communes.

    Now if you want to argue Natural Law, have at it. But as a matter of constitutional law your argument is meritless.
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
    Anonymous

  16. #14
    Quote Originally Posted by Sonny Tufts View Post
    You were making a legal argument based on the 4th and 9th Amendments, not upon some notion of Natural Law.
    I was not. I was making a philosophical argument, using the 4th and 9th as mere examples of our own Law. I don't taint myself with mere legality. I focus solely on Law, which speaks solely to that which is right, or not, between men, based in principles deriving from the inherent nature of those relationships. Legality is a network scam of arbitrary declarations based on the whim and caprice of a jerkoff, or set thereof, purporting to speak with authority that even the most cursory examination reveals as the fraud that it is.

    Your argument would be valid only if you believe the people in 1789 had a right to not be taxed
    Is it your contention that some humans have the right to force from other humans the fruits of their labors - of their rightful properties? If so, then that property was never theirs in the first place. Furthermore, from such a basic presumption, one stands but a small step or two away from justifying slavery, the contention being that if one man is entitled to my product, it is therefore actually HIS product, which implies that the means of arriving at that product is also his. Must I spell out what is so very clear? One man becomes in effect another's property. Is this what you believe?

    Yet they gave their state governments the authority to tax and their state governments (i.e., the agents of the people) gave the federal government the authority to tax.
    Who, exactly did this? I sure as hell didn't, nor would I ever. I am not bound by the arbitrary agreements of others. I am not a party to such contracts and as such am unbound by anything therein. I am bound only by the Law, and that derives solely and purely from the principles of proper human relations, which in their turn derive from the very nature of those relationships. That particular nature is simple in the extreme, and is provably so when one strips away all the noise and other bull$#@! that people have heaped upon the idea for thousands of years. A fine and sufficient nutshell of all that can be found in the Golden Rule, which is itself perfect and in no need of any improvement. But it does require intellect, smarts, and individual integrity.

    So it's pretty clear the people didn't feel that they had the right to live in a society and be free of any obligation to pay for its upkeep.
    They are welcome to all of that, so long as they keep their hands off me and that which is clearly mine. But if you believe that they hold some inherent and valid authority to impose such restrictions on me, a free individual born with no obligations toward my fellows, save that I bring them no unjust harm, then please an by all means illuminate me. If you have a valid and truthful argument, I will gladly hear it and alter my views if I find it convincing.

    Otherwise, they never would have authorized the states or the federal government to tax and would have eventually descended into little anarchic communes.
    You speak of "them" as if they constituted some sort of one-size-fits-all monobloc. The very presumption your statement carries is self-evidently invalid. I refer you to the six elements of contracts as evidence sufficient to prove that what I assert is indeed true. There is no obligation without contract, and no contract without the presence of six conditions, namely:


    1. Offer
    2. Acceptance
    3. Capacity
    4. Consideration
    5. Intent
    6. Lawfulness


    I recall no offer ever presented, therefore I never accepted. No contract.

    I have the capacity to make such a choice. I suppose we could say consideration is present: my liberties in exchange for a paltry set of false promises.

    Intent is nonexistent. No contract.

    Lawfulness is arguable many ways.

    Absence of even one element = no contract. Three are definitely missing, and one of wholly questionable value, the last of very questionable Lawfulness. The only solidly present element is capacity, and in that capacity I resolutely reject the demands foisted upon me by rotten men whose cancerous souls have lain the world of men to wrack and ruin.
    freedomisobvious.blogspot.com

    There is only one correct way: freedom. All other solutions are non-solutions.

    It appears that artificial intelligence is at least slightly superior to natural stupidity.

    Our words make us the ghosts that we are.

    Convincing the world he didn't exist was the Devil's second greatest trick; the first was convincing us that God didn't exist.

  17. #15
    Quote Originally Posted by osan View Post
    I was not. I was making a philosophical argument, using the 4th and 9th as mere examples of our own Law. I don't taint myself with mere legality.
    .

    To the contrary, you claimed that "the power to lay and collect taxes CLEARLY violates the Fourth and Ninth Amendments at the very least." That is a legal argument, not a philosophical one.

    Your last post consists of philosophical assertions, with one quasi-legal argument that contradicts them:

    Quote Originally Posted by osan View Post
    There is no obligation without contract
    Yet you also claimed:

    I am bound only by the Law, and that derives solely and purely from the principles of proper human relations, which in their turn derive from the very nature of those relationships. That particular nature is simple in the extreme, and is provably so when one strips away all the noise and other bull$#@! that people have heaped upon the idea for thousands of years. A fine and sufficient nutshell of all that can be found in the Golden Rule, which is itself perfect and in no need of any improvement.
    So if an obligation must be based on contract, then unless someone agrees to your notion of "the Law", "proper human relations", the Golden Rule, or even your claim that all obligations must be based on contract, he isn't bound by it and may do whatever he wants that's consistent with his philosophical assumptions, and you have no basis to claim he is obligated to accept any of your philosophical assumptions.

    Of course, one could argue that your continued presence in a society from which you are free to leave at any time constitutes a tacit acceptance of that society's rules and creates a legal (not necessarily a moral) obligation to obey them. But that's a debate for another day.

    Btw, I hope you realize that the Golden Rule, which you see as perfect, really isn't. Consider: how should a masochist treat others? Or as the old joke goes:

    Masochist: Beat me, please beat me.
    Sadist: No.
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
    Anonymous

  18. #16
    Quote Originally Posted by Sonny Tufts View Post
    .

    To the contrary, you claimed that "the power to lay and collect taxes CLEARLY violates the Fourth and Ninth Amendments at the very least." That is a legal argument, not a philosophical one.
    You are ignoring the more significant portion of my position: that where conflicts exist between state powers and individual rights, that rights trump synthetic, arbitrary powers. That is by all means a philosophical argument.

    As for contradictions, no. I didn't think I'd have to spell it all out, but here goes: as for contracts, that concerns synthetic agreements between willing parties. As for Law, that derives from the fundamental nature of relations between individual human beings. There is nothing arbitrary about them. A man may deny gravity all they want, but I'd bet money I don't have that when I have him on the precipice of the old WTC towers, he'd be plenty reticent to take that step off. And were he fool enough to do so, there would be a most satisfying <SPLAT> just about ten seconds later.

    So if an obligation must be based on contract,
    SYNTHETIC obligations - i.e. obligations based on arbitrary agreements that satisfy the interests of all parties thereto.

    Law is different. The type of which I speak is immutable. It never changes, and and it applies to all men, which is what makes it sacred.

    then unless someone agrees to your notion of "the Law", "proper human relations", the Golden Rule, or even your claim that all obligations must be based on contract, he isn't bound by it and may do whatever he wants that's consistent with his philosophical assumptions, and you have no basis to claim he is obligated to accept any of your philosophical assumptions.
    None of that is true, my friend. As I wrote above, one can deny gravity all day, but when push comes to shove, they either acknowledge their error, or pay most gravely.

    I will add, and I'm sure you (or at least hope) that you will agree that there is a deep and abiding difference between "cannot" and "may not". I can violate your rights all day long, but just because of this fact it does not follow that I may do so. Maybe God judges us in the end of it all, maybe not. Karma? Perhaps. Maybe there is nothing and we are all twisting in the wind, little meat-bags scurrying about hither-thither, doing what we can to get from one day to the next, and maybe with something of meaning to ease the burdens of having to fight the wild that is trying to consume us and our offspring. But the fact nonetheless remains that when you disappear all humanity, save two, the nature of the relationship between them when they are in some meaningful physical proximity to each other takes on a simple clarity that is obscured very effectively from the average man's perception when he is dealing with the noises of having thousands or even millions of his fellows milling about, all around him.

    Consider also, regarding proper human relations, that the presumption of equivalence based on being equally alive, holding equal claims to life itself, stands freely on its own, requiring no proof whatsoever due to its self-evidence. Contrast with the idea of one of those two holding superior claims or positions or status over the other. Such a claim demands proof via illustration and explanation that speaks to something fundamentally and obviously different between the two - something that is clearly relevant to the question at hand. "I'm bigger and stronger" doesn't cut muster on that account. Using the "might makes right" argument smacks of nihilism, and by all means of the ephemeral conditions of human flesh. Today's strong man becomes tomorrow's doddering old man, if he even lives that long. And I will add there that ANYONE can be killed. Nobody is immune to chaos, even if one may hedge bets via money and what it can buy.

    Once again, the individual is as always faced with the choice of what to accept as true. I fully acknowledge that many believe in idiocies such as might making right, but that doesn't lend validity to such notions. If we are equal in our claims to life, which is to say our right to life, then there is no valid philosophical/moral basis for any violation of one man's rights (claims) by another. The power to tax is such a violation. It is self-evidently arbitrary, as it is violative of all who decline to be taxed, all of this felony based on the perversion of a notion of "fairness", which is ever so transparently a weak-handed stab at the justification of the unjustifiable.

    Tangled is the web of lies and bull$#@! that underpins nearly every aspect of our political lives. Low is our capacity to sort through it all, and lower still is our will to do so for the corruptions to which we have all turned ourselves in favor of the difficult path that leads to men's freedom. We are fond of talking the big talk... liberty this, freedom that, and yet we walk nary a step of that which issues from our pie holes - statistically speaking.

    Of course, one could argue that your continued presence in a society from which you are free to leave at any time constitutes a tacit acceptance of that society's rules and creates a legal (not necessarily a moral) obligation to obey them. But that's a debate for another day.
    Strictly speaking, that is perhaps true. Practically speaking, it is a lie, just as it is a lie to say that if you don't like <X>, you are free to move away. There are many practical obstacles to such choices in the real world for the mean man. Besides, such arguments tacitly imply that the violations in question may somehow be justifiable, when in fact they are not. Now, if I move into a community that has long-established traditions to which all other residents agree, I have perhaps no basis for complaint when I discover those traditions unpalatable. Consider the classical HOA deal. A piece of land is bought privately, developed, and parcels with houses sold with attendant CCRs to which all buyers are made aware prior to signing anything. Those people who complain about these restrictive covenants are $#@!s because they agreed to them when they signed on the dotted line. If you don't like the restrictions, don't buy. But people don't operate this way, oftentimes.


    Btw, I hope you realize that the Golden Rule, which you see as perfect, really isn't.
    Depends on how one perceives the Rule. I see it essentially as delivering a simple mandate: don't be a hypocrite. Want respect? Give respect. Want love? Give love. And so forth and so on. Want your rights respected? Respect those of your fellows. It is the simplest formula, and it is indeed perfect.

    Consider: how should a masochist treat others? Or as the old joke goes:

    Masochist: Beat me, please beat me.
    Sadist: No.
    Cute, but not convincing. It takes the Rule in a mistaken manner, so far as I can see. Anything can be stretched out of recognizable form, and there may in fact be those outlier cases - somewhere in the fourth sigma, that lend difficulties. I don't concern myself with them, content to leave the people faced with such questions to their devices. Anyone wishing to torture a principle based on some pedantic notion that effects basically nobody's life, is free to do so. Just let them be aware that $#@!ing around with the rightful prerogatives of free men tends to be very risky business. I, for one, will have none of it. I leave others alone and expect the same from them. This is not unreasonable.
    freedomisobvious.blogspot.com

    There is only one correct way: freedom. All other solutions are non-solutions.

    It appears that artificial intelligence is at least slightly superior to natural stupidity.

    Our words make us the ghosts that we are.

    Convincing the world he didn't exist was the Devil's second greatest trick; the first was convincing us that God didn't exist.



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