2023-12-20
Due Process and the Constitution
- A December 2023 essay on due process and the Constitution, prompted by the Colorado Supreme Court barring Trump from the ballot under the 14th Amendment.
- Uses formal systems and Godel and Turing to explain why a constitution can never be fully unambiguous, and walks the three ways courts satisfy a due-process test.
- Warns that removing a right by accusation without conviction echoes Plessy v. Ferguson's invented separate-but-equal doctrine, and that abandoning norms invites banana-republic persecution.
- Ties it to the Cardano constitution: under what rules could ADA be frozen or you be deanonymized, and an Intersect effort to express law unambiguously via a domain-specific language like Lojban.
25 entries
Opens December 20th 2023 wishing a merry Christmas after a long but remarkable year traveling from Dubai to Mongolia to Louisiana.
His love of formal systems, where truth flows from axioms that should be consistent, complete, independent as in Euclid's parallel postulate, and decidable, yet math is neither complete per Godel nor decidable per Turing, which birthed computer science.
Some systems like Hilbert's geometry are complete and decidable, which frames the Cardano constitution question of how much should be machine-understandable versus left to human judgment.
Calls the Colorado Supreme Court barring Trump from the ballot a political Rorschach test, petitioned under the 14th Amendment on the claim he committed insurrection.
Citing the 14th Amendment's lack of a conviction standard is Dunning-Kruger, failing to read the document in its totality, since constitutional interpretation is not fully decidable.
The originalist-textualist view of Antonin Scalia that tries to get into the writers' heads, as with the Second Amendment written by revolutionaries who valued an armed populace in the Federalist Papers.
A living interpretation weighs the gap between a musket and an AR-15, a tank, or his Blackhawk helicopter, so legal philosophy leaves room to disagree.
Free speech is not absolute since you cannot yell fire in a theater, and 200 years of case law settles apparent contradictions like the 14th versus the Fifth Amendment.
Lays out the first way to satisfy a due-process test, a political process of impeachment and removal with the Chief Justice presiding over the trial.
A judicial standard, the US Code insurrection statute you can be convicted under, and a personal process like the Confederacy formally leaving the union to wage war.
A court constructs an objective insurrection test applied equally to all, which matters for Cardano as it moves to negative rights that restrict what the protocol can do.
Negative rights in the US Constitution restrict the government from violating rights you are born with rather than granting them, a major innovation of the founders.
Argues barring Trump strips a god-given right to run without due process and reverses innocent-till-proven-guilty, so the Supreme Court will overturn it as judicial overreach.
Recommends Princeton's seven-week constitutional interpretation course by Robert George, and Scalia's book Reading Law as the gold standard for building your own interpretive system.
Constitutional interpretation is not academic for Cardano, custodians of documents defining an ADA holder's rights and what the government can do with common goods like the treasury.
Offers a thought experiment: 2020's CHAZ secession could, under a strict 14th-Amendment reading, make anyone who supported it ineligible for office without any proof.
A political investigation without conviction is not due process, and a fair court would make the amendments compatible rather than allow an inconsistency.
Cites Plessy v. Ferguson inventing separate-but-equal out of thin air as the bedrock of Southern segregation, warning of the danger of legislating from the bench with catastrophic consequences.
Asks for Cardano under what circumstances you could lose ADA or have a transaction frozen or reversed, currently impossible, or be deanonymized via escrow keys if privacy is added.
Says America abandoned first-principles thinking for teams, so due process stops mattering because orange man bad, and warns Republicans will weaponize the FBI and DOJ in return.
Arresting the poll-leading candidate is what banana republics do, throwing away 200 years of norms, since rights never live in a vacuum.
Warns that if ADA ownership becomes contextual to your politics, the ecosystem is in a bad state, just like law applied by personal taste.
The Intersect Civics committee is pursuing an algorithmic representation of law, aiming in 2024 to develop a domain-specific language that expresses law unambiguously.
Points to Lojban, a 1970s constructed language built on predicate logic to remove ambiguity, and notes the Cardano protocol went from prose to math to Agda's machine-executable, zero-ambiguity specification.
Closes that liberty requires being informed, that a free society needs checks, balances, and equal application of the law, and that blockchain moves the world from don't be evil to can't be evil by design.