Comment by BirAdam
4 months ago
I feel like this was a mistake: “must be limited to those demonstrably necessary and narrowly tailored to fulfill a compelling government interest in public health or safety”
So, public health or safety, in the hands of a tyrant how broad can that get? I imagine that by enshrining this in law, Montana has accidentally given a future leader the ability to confiscate all computing technology.
In the hands of a tyrant all laws can be arbitrary/ignored because that is a key part of what makes them a tyrant.
Almost every part of government is in isolation a single point of failure to someone with a tyrannical streak, it's why most democracies end up with multiple houses/bodies and courts - supposed to act as checks and balances.
So this law wouldn't alter the outcome in the slightest.
> In the hands of a tyrant all laws can be arbitrary/ignored because that is a key part of what makes them a tyrant.
But that is not how tyrants actually operate, at least most of the time.
The most tyrannical country possible would be a "free democratic union of independent people's republics". Democracy has been so successful that most tyrannies operate under its veneer. This is in stark contrast to how monarchies have operated historically.
The trick isn't to ignore laws, but to make them so broad, meaningless and impossible to follow that you have to commit crimes to survive. You can then be selective in which of these crimes you choose to prosecute.
You don't charge the human rights activist for the human rights activism. You charge them with engaging in illegal speculation for the food they bought on the black market, even though that was the only way to avoid starvation, and everybody else did it too. In the worst case scenario, you charge them with "endangering national peace", "spreading misinformation" or "delivering correspondence without possessing a government license to do so" (for giving out pamflets).
"must be limited to those demonstrably necessary and narrowly tailored to fulfill a compelling government interest" is exactly the shenanigans tyrants love. You can get away with absolutely anything with a law like that.
> In the hands of a tyrant all laws can be arbitrary/ignored because that is a key part of what makes them a tyrant.
Sure, but legislators should generally avoid explicitly building the on-ramp to such behavior.
How has that been working in the US where both the legislation branch and judicial branch have willingly given their authority to the executive branch?
You would think the fact that I put "supposed to act as checks and balances." in my post would answer that but apparently not.
> So this law wouldn't alter the outcome in the slightest.
If an unchecked tyrant exists, do they really need the paper-thin facade provided by manhandling the English language to pretend that some law supports their actions?
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It sounds like you completely agree with the comment you replied to?
in that case they can just vote in whatever law they want or they can hold starving kids hostage and forbid anybody from helping - I don't think this law in particular will make any of it worse.
give a man a shovel, and a treasure map, but dont tell him he is digging his own grave.
Yes. That has been a problem. Several states outright ignored the scotus Bruen decision.
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How would you expect checks and balances to work when a single party controls all the branches? Is this a serious comment?
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This is essentially the "strict scrutiny" standard, which governments have to achieve in order to violate your strongest constitutional rights (e.g. 1A). If you don't spell it out, then it might be delegated to a lower standard like "rational basis".
Correct.
This is how laws are written. A court would determine whether the state is abusing or violating this public safety carve-out.
And this exact method is how we got minimum lot sizes, setbacks, FAR, and a burgeoning affordability and homelessness crisis. It's a blank check.
Yes, the ability to litigate is key. Only a few can afford it.
Seems like a lazy way to write a law. Basically just gives any governor whose party controls the supreme court a blank check. The law should qualify what public safety means
You want discretion for judges so that they can respond to the problems of their era wisely rather than rigidly applying the ideas of another time without nuance
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What drives me nuts is the way lawyers (of all stripes) keep praising "legal reasoning". None of it strikes me as even vaguely rigorous.
I'm not a lawyer so I could well be completely off base here. But if my perception is correct, I would much rather they admit that it's fundamentally up to someone's gut feeling. That's more honest than telling me that a bit of reasoning is airtight when it's not.
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> gives any governor whose party controls the supreme court a blank check
Here's the thing: this is not supposed to be a thing. Not supposed to be how things work at all, but it kind of does now.
So the trust implicit in the broad language of our laws gives - has been giving - a massive advantage to bad faith actors who obtain power.
It appears to be a law that is simply adding restrictions to what the state can do (like the first amendment, the best sorts of laws IMO). It’s not granting people limited rights. Any existing rights people had under the fourth or first example, for example, are still in place, this just sounds like further restrictions on the state.
What are rights besides restrictions on the state?
This phrasing is not by itself unusual; this almost mirrors the requirements for strict scrutiny.
Do tyrants care about law? They find ways to work around law, write new law, and rule by decree.
Democracy is largely following norms and tradition of respecting the people and laws, but it can also be ignored when those in power shift.
Agree - it feels a lot like emergency measures, which are broadly abused at every level of the government and by both major parties.
Yeah, so much that my feel is this law basically gives the state of Montana the right to confiscate computing equipment rather than the right to of the owner to have and use it. I understand that the intent of those involved in passing this was to protect civilians from the state, but such a broad and unspecific carve out just makes me think that a radical from either side could paint with quite a broad brush. “Who’s the terrorist today?” Kind of thing.
I know what you mean, but this is actually as strong as a protection in Montana (and probably elsewhere) gets. The burden is high. Montana's RTC bill had strong and competent libertarian input.
I see your point, but a tyrant doesn't need to follow laws in order to do tyranical things
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