You do realize that when you're making new laws you can make those laws say anything you want, right?

Not exactly. The idea that law can be arbitrary is a severe and tyrannical perversion of the law. Human law is a circumstantial determination of the moral law (or ethical principles, if you will) and the demands of justice. Lex iniusta non est lex (an unjust law is not a law). So we are not at complete liberty to legislate arbitrarily just because we think we have the power to do so. Indeed, we run the risk of passing laws that aren't laws at all, but only have the appearance of law.

Furthermore, determining the law is not the same as determining the outcome of having that law on the books. The law is permissive about many immoral behaviors, at least in part because the enforcement of laws regulating such behaviors would cause greater harm than the behavior in question. Prudential judgement among lawmakers is necessary to determine what should and should not be regulated.

Downvoters: this is a nice nutshell statement of a thoroughly respectable thesis, relevant to the thread. I like Hayek's Law, Legislation, and Liberty for a long version, if you don't understand how it can possibly be reasonable.

In a system of government founded on a Constitution, those laws have to follow the Constitution (at least in an eventually-consistent way). (Or the Constitution must be amended, or a revolution has to happen; neither of the latter two are possible by a legislature acting alone.)

Changing the constitution is changing the law.

You don't need a constitution for this purpose, even though a constitution can have practical benefit. And furthermore, you'd only be passing the buck by appealing to a constitution. I could just ask whether the constitution is arbitrary, and in this case, you could not appeal to anything to ground or constrain it. The ultimate ground for the written law is the moral law, such that the first is a determination of the second given the circumstances of a given jurisdiction. Note also the distinction between lex and ius.

It’s not that you need a constitution, but rather than many democratic governments have a constitution and that must be considered in the context of “when you're making new laws you can make those laws say anything you want”.

But you can't make them do anything you want.

You can, its called a tank.

Even that, can't make them do anything you want. It makes them die.

Tanks can't go door to door on enough of the populace.

If it's a law that's unpopular enough, it's not enforceable pretty much anywhere. Even less so in the US, because of the staggering number of civilian owned guns.

Tank go through door

Right, but there's too many doors

Tanks can go through some of the doors, especially as long as you know there isn't a basement. So if you have a small segment of a population you need to go through doors on, sure.

But if it's enough of the population, then tanks don't work to enforce the laws.

I dunno, you roll out all of the armored tank division, it doesn't have have to be 1:1...

Sure but there's like 5000 total tanks, and 80,000,000 houses (not including multi unit buildings).

It doesn't scale.

The military as a whole doesn't work well as a police trying to enforce laws, but even if it did, it wouldn't be the tanks. It would be door to door with infantry.

> Sure but there's like 5000 total tanks,

And 7000 IFVs, and 15,000 APCs, and 25,000 Mine Protected Vehicles, and also a bunch of fixed and rotary winged piloted and unpiloted aircraft carrying PGMs, all of which can go through specifically chosen doors, and, as with the tanks, all of which can send something through many specifically chosen doors (or windows, walls, whatever) in a fairly short period of time.

Not good for arresting people, bringing them to trial, and providing due process, but that's not the only means of raising the expected cost of non-compliance with the law so as to coerce compliance.

I suspect the US army would very upset with a government that tried to use it to enforce an unpopular law.

It's a volunteer force. Might simply refuse the orders as unlawful, might repeat 1861, depending on the law.

I'm told "fragging" comes from the weapon of choice used by conscripts in Vietnam against unpopular commanding officers.

I was only trying to be funny, but I agree.

I know, but now Im interested in the effective fear factor of a single M1 against an American suburb.

When people have no arguments they post this type of long meandering messages on HN. Please stop wasting people time.

"we can't ever look to make decision-makers accountable because I'm afraid accountability will be used as a political cudgel"

Personally, I see no issue with increased accountability on both of these fronts. If you sign up to be the person who gets to decide whether other humans are put in a concrete box for years at a time, you should be willing to face the highest levels of scrutiny for your decision making. And if you are wrong there should be harsh punishments for your failures.

I'm in agreement with this, provided that the same level of scrutiny is applied when assessing the circumstances that led to a misstep in judgment/sentencing.

I'm saying that judicial independence in the net protects innocent people from over-enthusiastic criminal prosecution—protects from the mob of the public who leans strongly in the direction of fear, anxiety, and precaution on the topic of crime. If you degrade the immunity of courts, you also open the gates to attacks on judges who are not sufficiently punitive on criminal defendants—your word, "accountability", is a double-edged sword that cuts more sharply on accused criminals and those who would defend them. Accountability for those who commit crimes (those who protect the criminals, undercut accountability). Accountability for those who failed to protect the public from dangerous deviants.

I don't know how better to phrase this. I fully agree with your values—but look at the state of things, it's right now even a contentious issue whether innocent people should be jailed or not. (That is, whether criminal defendants should enjoy their constitutional right to pre-trial bail, or if they should be put in a cage without trial, without conviction—the majority seems to lean in that direction, in the name of safetyism. The topic of "bail reform"). It's a complicated game where everything is genuinely awful and there's no clear path towards making things less awful, and a lot of the naive ideas counterintuitively make things worse. Political pressure on courts definitely would make things a lot worse, at this point; dead certain. What can one do, in such a world?