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I think there is a strong grain of truth to what you say. My politics are fairly lawyerly,[1] and I find the anti-democratic sentiment on here disquieting, especially the constant attempts to discredit the democratic process at every turn by unsubstantiated hand waving about how the system is "bought."

[1] I think the chicken came before the egg. The profession attracts people who have a strong sense of order and continuity, it doesn't make them that way. Though I think it's incorrect to juxtapose "innovation" so starkly with a love of order. "Cowboy engineering" isn't universal even among technical people. Lots of wonderful things are pyramids--created by armies of order-loving engineers. 787's aren't built by rule breakers.

For the record, I do not consider myself anti-democratic. I consider myself pro-democratic. However I do not see that we have a democratic process.

As a concrete example, consider the last election. More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less partisan. Yet Republicans won Congress by a significant margin, and most members of Congress are in seats where their only realistic political challenges will come from the radical wing of their own political party.

In short, the population wanted moderates with a slight preference for Democrats, yet overwhelmingly we got extremists and a significant Republican majority. This does not reflect the desires of the American people, nor will the actions of our elected officials reflect our aspirations.

I could multiply with examples of how the governance of our society results in things not desired by the population, or not supported by my understanding of how the Constitution was meant to be read. But my point is simple. If you like sausage, you shouldn't learn how it is made. I want to like our legal system, but I've learned just enough about how it works and came to be that I cannot trust it.


That's not how it works. The Congress as a whole does not represent the US population as a whole; it's not supposed to, and I'd argue it would be a terrible idea if it did. You have one representative, who represents one district. If the whole Congress represents the whole country, then no individual representative represents any specific area.

If a district in Vermont votes 60% R/40% D in favor of a Republican, and a district in West Virginia votes 5% R/95% D in favor of a Democrat, then that argument would say since the total of the two districts is 32.5% R/67.5% D (assuming equal population districts), the "congress" of two districts should have two Democrats, rather than one of each. The Vermont district should have no effect on the representation of the West Virginia district.

Frankly, I would consider myself more towards the "anti-democratic" side: I'm much more on the side of "democracy is two wolves and a sheep voting on what to eat for dinner". Not that the foundation of government shouldn't be democratic, but there need to be very solid protections in place to prevent a majority trampling on a minority. If anything, our system has become too democratic recently; very few of the rights in place to protect us are still respected. (I guess our 3rd Amendment rights are still pretty safe, but other than that.)


I know how it works. The Congress that we get reflects the gerrymandering of Congressional districts that has been done state by state. The average of people elected to Congress is not biased Republican because voters in Vermont and West Virginia are not balancing out, but because states like Florida and Ohio have districts drawn such that each district is clearly one side or another, with the number of Republican districts significantly exceeding their popular support across the state.

The national result of those gerrymanders is to give Republicans a non-representative edge, and to give the extremists of both parties a much bigger impact than they would otherwise have. And this is not just "how it has always been". This is a trend that is intensifying over time. That is, Congress does not represent the people very well, and represents us less well now than it did a generation ago.

See http://fivethirtyeight.blogs.nytimes.com/2012/12/27/as-swing... for more on this exact topic.

PS You picked a poor example. The only court case in which the third amendment was at direct issue is http://en.wikipedia.org/wiki/Engblom_v._Carey in which it was found that the law was so obscure that bureaucrats could not be faulted for having violated it. Any future violation can also be defended on the same grounds, so it is effectively null and void.


I believe that there are two, related problems in the American democratic process. The most basic one is the power of incumbency and lack of competitive elections.

Turnover is at a historic low and getting worse. It's lower than in the Soviet Politburo, and most districts never have competitive elections. The last mid term was at least partially a reaction to that. However en-mass replacement is no better than perpetual incumbency, and blindly voting against everything is no better than being a rubber stamp. I think they're equally bad. To those that say it's worse - would it really have been bad if there had been congressional opposition to the Patriot Act and Iraq war from someone other than Bernie Sanders and Ron Paul?

To get better people, there needs to be rotation in office in a regularized fashion. Yes, that means Term Limits. I think limits on consecutive terms is a better than absolute limits. I.E. you can't run for the same seat in the election immediately following 2 consecutive terms, but can in the election immediately following. This solves the problem of incumbency without permanently barring good people. It's the system that was used in Greece and Rome, and was favored by many of the founding fathers.

It's even more helpful considering that currently, power in Congress and Senate is essentially based entirely on seniority.


Regarding Democracy vs. Law/Rights:

How do you suggest law and rights be strengthened? The staleness of congress is just leading to more and more use of executive power, more arbitrary and king-like rule.

If you want laws that are better and more followed, you need better people to write them, which is congress.


Yes, representatives represent districts, not the population as a whole. But the fact that a majority of voters voted for a Democratic representative for their district, yet the House as a whole has a solid majority of Republicans, indicates that the districts are highly gerrymandered rather than being apportioned in a way that reasonably reflects the population. And if you look at the maps of district boundaries, you find that yes, they are highly gerrymandered.


>More than 50% of voters voted for Democrats in Congress (even when you discard seats where there was only one party on the ballot, still over 50% voted that way), and a large majority in polls want Congress to become less partisan.

The problem with your argument is that people voted based on how the election system is currently setup. If the system were setup differently, then people might have voted differently. It's the same issue when people say that there is a problem when a presidential candidate won the "popular vote" but not the electoral vote. Had the election actually been based on the popular vote, the voting might have been different. If you live in a state that is definitely going to one candidate or another, you might not bother voting under the electoral vote system, but you might have in the popular vote system. The "popular vote" results don't take into account these people and is not necessarily a reflection of what the popular vote would have been in a popular vote system.

Similarly, let's suppose you have a state that's definitely going Republican in the presidential election no matter what. You get lower turnout and the state chooses a Republican president and congressmen, but the country chooses a Democratic president. Because the turnout was low in the Republican state, but perhaps higher in the swing states that ultimately voted Democrat, when you look at total voters, it appears that percentage-wise, more than 50% of voters preferred Democrats. When looking at the percentages you can't ignore that many people intelligently chose not to vote in that state because their vote didn't matter. Had they known their vote would matter, the turnout and percentages may have been different.

In other words, it's not so simple to say that "More than 50% of voters voted for Democrats in Congress" because you're not taking into account all of the people who had opinions about who they wanted to win, but rationally chose not to vote in their particular area because the outcome of the race was certain in the way the election system was setup.


According to polls, people who don't vote are overwhelmingly Democratic. So if you count people who didn't vote, the election becomes even less representative.


Quite possibly true. However, I'm not talking about everyone who didn't vote, I'm talking about people who would vote if the system were different or if the outcome of the election in their area were more likely to be different.

This can roughly be seen by the difference in voter participation in swing states vs non swing states, not everyone who doesn't vote at all. (I'm assuming the people who don't vote in swing states wouldn't vote under a popular vote or different election system).

There's also the fact that get out the vote campaigns and campaign advertising would be conducted differently under different election systems. Under the current system, neither presidential campaign advertised much in Vermont or Oklahoma, but under a different system they might have, and the actual percentages coming out of those states might have been different.

All I'm really trying to say is that it's difficult to look at the results of one election system and easily predict what the results would be under a different system. The results under our current system may still be generally representative of what we'd get.


This won't change until we get rid of first past the post and gerrymandering.

And with the way things are going, I don't think there is a good chance of that happening.


And I think that was his point about using "innovation" to bypass a system that is almost immutable.


OK, here's some substantiation: http://www.nytimes.com/2013/01/03/opinion/how-bankers-help-d...

HSBC has admitted that it is for all practical purposes a criminal enterprise masquerading as a bank. This is not a paperwork mistake or a lapse of oversight, it's their business model. Nobody will be prosecuted. The people performing these admitted criminal acts will be allowed to keep their paychecks, their bonuses, and in many cases, their jobs. No jail time, no criminal records, not even 40 hours of picking up trash in a park.


I'll leave this here.


Planet Money talks about HSBC and well worth a listen. The problem really is why haven't any individuals been indicted from HSBC or any Wall Streeters (from the whole mortgage mess)?

On a side note, Planet Money is IMO an outstanding podcast.


The problem really is why haven't any individuals been indicted from HSBC or any Wall Streeters (from the whole mortgage mess)?

Because then you would also end up having to indict all the government officials who were intimately involved in the mess. One of them is the outgoing Secretary of the Treasury (he was the head of the New York Fed then). Not gonna happen.


> unsubstantiated hand waving about how the system is "bought."

On December 16, 2005, The New York Times reported that the Bush administration was spying on American citizens without a warrant. Most of the major Telecoms were participants in this massive, warrantless eavesdropping system. So the EFF and the ACLU filed lawsuits against these telecoms. Federal courts began ruling against the telecoms (Yay! Democracy in action!).

So the telecoms "bought" some lawmakers. In July, 2008, the senate passed H.R. 6304 which provided retro-active immunity to telephone companies that participated in the Bush administration's warrantless surveillance program.

ie: This is not unsubstantiated. This is not hand-waving. The system was "bought".

Since then, congress doesn't even bother with immunity any more. Both Cheney and Bush have admitted on national television that they authorized torture. (Torture is still illegal in the U.S.: http://www.law.cornell.edu/uscode/text/18/2340 -- that's a specific law passed by a democratic system.) And yet no one was ever investigated or arrested or anything. Ho hum.

Obama now has a "kill list" that he personally signs. He can declare someone to die, without a court or a trial. That sounds like "monarchy" to me, not "democracy". ("Off with his head!")

Based on these and other events, as far as I can tell, at a federal level, we don't really have a democracy anymore. There's no democracy to uphold or respect. If you're a Washington insider, protecting Washington power, then anything goes -- spying on American citizens, torture, invading countries, killing people.

But if you threaten Washington power, then you will be hounded by prosecutors in the name of "justice". It's too bad Aaaron Swartz couldn't buy himself some retroactive immunity.


On December 16, 2005, The New York Times reported that the Bush administration was spying on American citizens without a warrant.

Unintentionally: Deliberately (albeit perhaps inadequately) avoiding purely domestic intercepts and destroying them when found. Subsequent legislation has attempted to make such intercepts even less likely and more transient.

That's a pretty important qualification. Why didn't you mention it? Your phrasing could equally apply to a program targeted at phone calls between California and New York.


I don't see how that's relevant to my main point: Important People can purchase immunity. The laws simply don't apply to them. The telecoms broke the law, then purchased retroactive immunity after the fact.


I am happy we can isolate a point of upstream difference here, as many times people argue about downstream things unproductively.

Regarding "cowboy engineering", granted. I would argue that respect for engineering practices/stability comes after that blistering innovation that builds the system in the first place. And in some cases at least, many lawyers seem to endorse anti-democratic measures (e.g. having federal prosecutors immune from election, or having the federal government enforce civil rights measures that were vastly unpopular in the states of enforcement). So it is more complex than pro/anti-democratic on the lawyer side too.

But ultimately even more than "democracy", it may just be whether you explicitly believe the ends justify the means. If your bold stratagem ends in failure, then even more scrutiny is placed on your extralegal or envelope-pushing means (see Napster). If it ends in success, you often have much more popularity/influence than you did before and the envelope-pushing is forgotten or romanticized (see Jobs' early phone-phreaking, or Youtube). So whether or not people verbally agree that the ends justify the means, they usually practically agree, in that one or more of their heros was a nonconformist who did change the system.

Indeed, often the kind of hero responsible for creating the legal system that they're implementing. The guys on the dollar bills, like Washington and Lincoln, led a revolution and suspended habeas corpus respectively; they did what it took to win, and let history be the judge of whether it was right. So from this vantage point, those who simply execute the law without concern for higher morality are respecting the hackers/revolutionaries of times gone by (because they won) while blocking those of the present day (because they haven't won...yet).


> I would argue that respect for engineering practices/stability comes after that blistering innovation that builds the system in the first place.

I quite disagree. The Internet, for example, wasn't the brainchild of rule breakers. It was a defense project, built by people quite thoroughly entrenched in the establishment. The telephone network, that made the whole country smaller, was built by the AT&T monopoly in a very civilized, orderly manner. A thoroughly beauracratic, top down, government agency working with huge, stodgy defense contractors put a man on the moon. For all it's daring, Space X started with a rocket design that was nearly half a century old. Most of the technology of the 20th century is the product of armies of engineers working orderly in top-down organizations. Pyramids.


I emphatically disagree.

If you look within those pyramids you'll find that most of the time the innovations that made the larger pyramid succeed were the result of small, focused teams. For instance consider the famous aircrafts designs for the U-2, the SR-71 Blackbird, the F-117 Nighthawk, and the F-22 Raptor. Large pyramids, right? Wrong. All were the result of small teams at Lockheed under Kelly Johnson. (Who had a famous list of rules for successful projects, the third of which was, The number of people having any connection with the project must be restricted in an almost vicious manner.)

Was this unusual? No! You brought up putting men on the moon and Space X. Both were utterly dependent upon the efforts of a small community of people studying liquid rocket fuels in the 40s-60s. What kind of people were those? According to http://library.sciencemadness.org/library/books/ignition.pdf (that copy didn't load for me right now, but http://web.archive.org/web/20121013085952/http://library.sci... did) there were at most 50 men scattered across multiple companies who understood the field, all of whom were "howling individualists".

The same is true in computer science. Major projects with huge impact created by a handful of people. Examples include Lisp, Smalltalk, C, Unix, patch, emacs... Companies which, when you tear back the curtain, truly were dependent upon very small numbers of people. Ask anyone who follows tech if Apple would have been Apple without Steve Jobs. Ask anyone who has worked at Google whether Google could have become Google without Jeff Dean.

Large groups working together on a known goal are essential to our society. We could not have the world we have today without them. But find me an example of great engineering that requires those pyramids, and when you tear back the curtain you'll find in technology after technology, in component after component, that critical pieces were absolutely dependent upon small groups of people. And those people, far more often than anyone in charge would like to admit, were rule breakers.

Those rule breakers who were the ones who got things done are, for technologists both then and now, heros. You may wish that the world of technology was better behaved. But you cannot understand or appreciate it without accepting the fact that it really is that messy.


I think the political points were stronger: the revolutionary war was clearly unlawful. The constitutional convention was, well, perhaps not quite unlawful, but a sort of de facto coup-de-etat that a lot of powerful people thought was necessary. Civil rights demonstrations? Unlawful. Pretty much every political innovation, by definition, is unlawful at the time of conception. It's hard to see how it could be otherwise.

That's why democracies, if they are true to their ideological roots, need to be very cautious and tolerant of peaceful forms of civil disobedience. That's why it's absolutely justifiable to object to prosecutorial overreach in such cases. Status quo pressures, if deployed with the full might of the law, are the ones that are anti-democratic, and that's what seems to have happened here, for political (or, worse, narcissistic) reasons.


>I find the anti-democratic sentiment on here disquieting, especially the constant attempts to discredit the democratic process at every turn by unsubstantiated hand waving about how the system is "bought."

I think a lot of that comes from the decentralized nature of this industry. The status quo in Washington doesn't mesh with that very well. Normally when two industries have a trade disagreement over legislation, they both send their lobbyists to Congress to advocate their interests and then it gets hashed out and usually something mutually agreeable (or at least balanced) comes about. But decentralized entrepreneurs don't have lobbyists or official spokesmen, as a general rule. So we can't easily participate in that process in the "traditional" way, and then the process repeatedly fails to arrive at results that satisfy us and we rail against it.

Which is probably not very productive in the long run. What we need is to find a way to interface with Washington as a decentralized group. Because in many cases we all largely agree and have similar interests, it's just that no one can go there and claim official representation of the entire group and Congress is not currently equipped to negotiate with a million semi-independent individuals.


Err, I think you have a very relevant point, but I think it's not fair to characterize this as either "order-loving" or "anti democracy".

I'll paraphrase Churchill: I think that democracy is horrible, but it's simply the best means we have of protecting individual rights.

Furthermore, democracy doesn't mean "majoritarianism", it means "rule of people". Yet even a simple representative democracy is exceedingly difficult to implement (obvious example is how would one draw district boundaries to ensure fair representation of all groups -- Gerrymandering is a huge problem) as to adequately represent "the will of the people". So a lot of people are contending this specific point.

I think where I draw the line is in ends vs. means: I strongly care about protecting basic individual rights. Primitive ancestral tribalism means absolute collectivism and zero individual rights (the right to swing one's fist was not limited by where another's nose began), so we've continuously evolved better and better systems to do so including Anglo-American Common Law (which today still provides some of the strongest guarantees of liberty anywhere on Earth).

On the other hand, just looking at the judicial history, I see a lot of clever bending of the rules and hacks that got us there: using 14th amendment to apply first amendment to defend highly unpopular speech was both "anti-democratic" and contrary to the letter of the law (the first amendment clearly said "congress shall pass no law"). Likewise, Roe v. Wade was a great judicial hack (use of 9th and 14th amendment to defend another activity most everyone opposed) that significantly expanded women's reproductive freedom.

These kind of "hacks" even made the idea of law entertaining to me (when fresh out of undergrad, I was being prepared for deposition in some IP litigation I got dragged to as a result of an internship I had, the counsel seriously urged me to consider law school instead of MS in CSE). However, I knew that realistically my choices would be either near-starvation or big law (absolutely the wrong place for someone like me, who could never adhere to a strict schedule or a dress code).

However, I don't see that "order loving" and "order breaking" are mutually exclusive: a software engineer is free to work at a firm that requires everyone to be in the office at 9:30 (irrespective of how late they stay until) and many choose to do so (practically all engineer working for financial firms). I don't see an issue with companies choosing this culture, with some reasonable exceptions (e.g., I'm not a laissez-faire absolutist, so I would consider it grossly unjust to fire an engineer for coming at 9:45 because their daughter had a doctor's appointment that morning).

While I would abhor forced-collectivism as a political system, I've enjoyed working at smaller "collectivist" companies, i.e., where everyone is focused on the same goal (which benefits everyone) rather than on advancing themselves.

So where does aaron enter into this? I think to me the part I found morally repugnant that the law that was meant to defend JSTOR (who have dropped the charges and whose rights were not severely transgressed) was aimed disproportionally against Aaron. In other words the state was acting to some concrete end that went far beyond what was reasonable to protect individual rights[1].

If the state wanted Aaron to never do this again, clearly stating to Aaron that if this happens again he will go to jail (something that seemed to absolutely deter him) and get a felony on his record (something that, again, would clearly deter him -- in that it would make his goals of social activism much more difficult in terms of difficulty of finding employment, vote or run for office, etc...).

Everything else seems superflous, unneeded and disproportionate (if JSTOR pursued the case they would have had a right to some kind of settlement, but not, e.g., forcing Aaron to pay $2 bn or sending him to jail for a decade).

What I think energized me even more personally is that his situation is far from unique -- you were also one of the first to point to this out too. However, rather than forgetting about Aaron, the proper response is to further seize on the momentum: Aaron was certainly influential and this influence could be used to change the laws governing prosecutorial conduct. I think (but correct me if I am wrong), you would also agree with me here.

Where we disagree (as far as I understand your comments) is just because 51% of people find personal drug use repugnant (or believe cooky theories about it), than they have a free hand at imposing drug laws. My own take being that "unenumerated" individual liberties (liberty being defined negatively and circularly as something that doesn't infringe on the liberty of othes) should be restricted if and only if doing so is crucial to protecting the rights of others (e.g., to use an artificial example, if a pain killer happens to make 30% of its users instantly and extremely violent it can be restricted, as long as it is still available under supervised conditions to who can't for one reason or another use another pain killer). More fundamental liberties (those crucial to continuation of liberty itself -- free speech, protection against torture, protection against unreasonable search and seizure) should have an even stricter standard (something similar to the "clear and present danger" standard for free speech in the US today). I think it's also close to the fundamental framework most (but not all) HN-ers subscribe to (libertarians and liberals alike), but there is wide disagreement on specifics of how it applies in each individual case (it's clear that an outright ban on marijuana has a zero or negative effect as far protection of fundamental liberties of others goes, but it's a bit more difficult for other drugs). Some might also argue that there is an even more fundamental right to use an entheogen, etc...

The libertarian positions tend to be more categorical than the liberal ones (e.g., property is the more right, so taxation is always unjust, even if it's the only way to provide basic healthcare or legal protection for individuals).

I am hopefully not caricaturing you, but your argument seems to be that liberties and rights are crucial, but they are granted and limited based on "greater common good" analysis as opposed to more categorical statements. I think it's perfectly valid and (often) seems to lead to similar conclusions as the system I use, but the thought process is very different in that a deeper-level happiness of majority (which is usually greatly bolstered by liberty, but not always so), as opposed to liberty itself is your overriding concern ("if a small minority really wants to do X which poses no harm to the majority, but the majority is deeply upset that X is allowed, then it's fine to bring the legal system down full-force on the minority that chooses to do X").

In the end I think these two systems actually converge more often that not: drug war does not serve the common good, for example. Yet, it's the disagreements that can be particularly vehement (such as issue of laws that infringe on individual rights in one way or another, but yet have a clear societal benefit despite not immediately protecting individual rights -- e.g., seatbelt laws, laws regulating food portions, drugs beyond marijuana, certain police practices, etc...)

[1] Reasonable people can disagree whether academic publishers have a right to hold papers behind a paywall. I think that's debatable, with my own views being closer to Aaron's. Another example where this is simply hard and reasonable people coming from the same "first principles" can disagree.


787's no. First powered aircraft. Absolutely.


Big organizations are almost by necessity not rule breakers, but just because you're not a big organization doesn't mean you are a rule breaker.


"unsubstantiated hand waving about how the system is "bought.""

It is not exactly unsubstantiated: the powerful people within the system have basically admitted it. See, for example, Chris Dodd's comments:


How exactly might you interpret a comment like, "Candidly, those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake?" Politicians count on big business for support and the leaders of those businesses make sure those politicians do what benefits them.

It's not just Hollywood. Obama needed the support of the pharmaceutical industry to push the healthcare bill through; the deal was that the Obama administration would fight harder against medical marijuana and imported drugs, and despite the fact that Obama's public statements included talk of depriotizing marijuana, his first two years saw more raids on medical marijuana dispensaries than all eight years of his predecessor. There is little doubt that the defense industry has a comfortable relationship with the government either: we spend as much on buying their weapons and systems as we spend on social security, and no president after Eisenhower has failed to involve the US in some military engagement or war (most of which were entirely unnecessary).

It is not that democracy is discredited, but that we question whether we even have a real democracy anymore. If your only choices are "far right" and "not so far right," does your vote really count? One has to look to the extreme minorities, third parties and independents, to find anything that could be called "left wing" by any reasonable standard.

I place the beginning of valid questions about American democracy in the 1970s. That was when the Democrats began catering to big business just like the Republicans, and it was in that decade that we (probably coincidentally) saw the beginning of paramilitary law enforcement. It was also the decade that saw the beginning of explosive growth in executive branch power (once the dust from the Nixon affair settled, anyway), which at this point has come to mean "when the president has it in for you, you're dead." As an example, it was in the 1970s that the attorney general's office gained the power to declare drugs to be illegal without having to wait for the wheels of democracy, and to arrest and prosecute people for possessing those drugs.

So can you really blame us for questioning the democracy of the United States? It seems like the only democratic processes that matter anymore are those that decide which set of big businesses will receive help from the government.


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