Due Process and the Constitution

Hi, this is Charles Hoskinson broadcasting live from warm, sunny Colorado. Today is December 20th, 2023, and we're getting dangerously close to Christmas. I wish all of you a Merry Christmas. It’s been a long, stressful, and exhausting year, but it’s also been a remarkable and fun year. I’ve truly enjoyed going to Dubai and hanging out with interesting people from around the world, from Mongolia to Louisiana and everywhere in between.

It’s been cool to see the diverse sets of opinions, cultures, and languages, and ultimately to get to know all your hopes and dreams and try to be part of them where it makes sense. I want to make a quick video about a passion of mine. I’m a big fan of formal systems and formal languages. Many of we do formal methods at Input Output, and I also studied mathematics a long time ago in a different life. The first thing you learn when studying mathematics, especially at higher levels, is the concept of a formal system.

You have axioms and truths that flow from those axioms. A big part of the foundations of mathematics revolves around four different areas: consistency, completeness, independence, and decidability. You want your axioms to be consistent, meaning they don’t contradict each other. You want them to be complete in that all the things you would want to say can be expressed within that system. You want them to be independent of each other, meaning you don’t derive one from another, but they are truly independent.

This was a significant issue with Euclid’s parallel postulate, for example. You also want them to be decidable, meaning that if you have some arbitrary decision, you can reach that from a series of derivations. It turns out that mathematics is actually neither complete nor decidable. We have Kurt Gödel to thank for that and Alan Turing for the undecidability aspect, which led to the birth of computer science. Turing's paper used Turing machines not to invent computers but to prove that math is not decidable, laying the foundations of modern computer science.

Formal systems are fascinating to study because not all formal systems are incomplete and undecidable. Some formal systems, like Hilbert's representation of geometry, are complete, and you can mechanistically decide all the things you want. This leads to many interesting concepts. Now, constitutional law is interesting. At Cardano, we have to deal with this because we’re writing a constitution for Cardano.

The question is how much of that constitution needs to be machine-understandable and self-consistent, with an appropriately large set of axioms inside it—call them amendments or sections. Ultimately, how much of that constitution is ambiguous and left to human judgment? Something recently happened in the United States that resembles a political Rorschach test. If you’re a Republican, it’s an outrage and wrong; if you’re a Democrat, it’s a completely legitimate interpretation of the Constitution. This involves Trump being barred from the ballot in the state of Colorado.

The Supreme Court in the United States was petitioned by a partisan group—the Supreme Court of Colorado, to be precise. Every state in the U.S. has its own Supreme Court, and then there’s the federal Supreme Court. The state Supreme Court looked at the 14th Amendment, and an argument was made that Trump committed insurrection and is therefore ineligible to be on the ballot in Colorado.

Many people say, “Well, we’ve read the 14th Amendment, and it doesn’t say anything about a conviction or a standard.” This is a classic example of the Dunning-Kruger effect. More importantly, it’s a classic example of not thinking about a document in its totality. Constitutional interpretation and analysis are very challenging because the Constitution was not written in a completely decidable, complete, or unambiguous way. There are many nuances and different schools of thought on how one would want to interpret it.

There’s the originalist textualist view, famously brought to light by Antonin Scalia, where the goal is to get into the mindset of the original writers and apply a high-fidelity interpretation of that time. The Second Amendment is an example; it was written by people who had just completed a revolution that was only possible because they had guns. The idea that the government needs to give you the right to have your own military is quite radical to a group of revolutionaries. They believed a well-armed population was essential for a republic to exist, as it prevented a tyrannical government from causing problems for the people. A living interpretation of that document would argue that there’s a world of difference between a musket, which you have to load, and an AR-15, which can be modified to become fully automatic and kill hundreds of people.

Depending on your legal philosophy, you can have disagreements over how to interpret and build a framework around the Second Amendment. It’s similar with freedom of speech; an absolute interpretation would suggest you can say anything regardless of the consequences, like yelling fire in a theater and causing a panic. Over 200 years of constitutional interpretation have led to a lot of case law and common notions that have become somewhat settled. A great example is when constitutional amendments seem to contradict each other, the 14th Amendment and the Fifth Amendment. The Fifth Amendment states that you can’t be deprived of life, liberty, or property without due process.

The 14th Amendment doesn’t seem to create a due process test for depriving you of a right. Normally, a constitutional scholar would examine whether there’s a way to make the amendments compatible, even if it’s not explicit. There are three different approaches to generate a notion of due process. One is a political process, where you’ve been removed from office through impeachment, presided over by the Chief Justice of the Supreme Court, which seems to provide due process. There’s also a judicial standard; in U.

S. code, there is a standard for insurrection, and you can be convicted of it in a court of law, which would meet the Fifth Amendment standard. Then there’s a personal process, like what the Confederacy did, where agents of the U.S. government formally left the government and joined an organization at war with the United States.

Any reasonable person would view such an action as some form of process. We can argue about what level of thresholds need to be there for insurrection. Typically, a court would construct a test, aiming for objectivity, meaning it’s equally applied to all people. You have to have equal application to stay compatible with other amendments. This is not easy, and as you can see, there are significant political differences.

These issues are always taken in a broader context, which is very relevant for us in the Cardano ecosystem, especially as we move from negative rights—things that restrict what the protocol or a government can do—to a more nuanced understanding. For example, freedom of speech and freedom of religion don’t give you those rights; they restrict the U.S. government from interfering in those things. It’s important to understand that negative rights in the U.

S. Constitution are there to prevent the government from violating rights you already have and are born with. This was a significant innovation in the writing of the U.S. Constitution.

Analogously, when you look at the Cardano Constitution, there’s a broader conversation about what constitutes a negative right versus what is a punitive measure to restrict a right. Under what circumstances can the network do something? In Trump’s case, they are disqualifying him from a right he has—the right to run for office, which is essential for a republic. To disqualify him, you need some notion of due process; evidence must be presented. He’s innocent until proven guilty, so it doesn’t make sense for him to have to sue the government to establish his innocence.

This situation will likely be overturned by the Supreme Court of the United States because it represents a significant judicial overreach. However, it raises an interesting question about how we find these intersections, as there are co-equal branches of government: the executive branch, the legislative branch, and the judicial branch. All three branches can sometimes be involved, and definitions are not clear. If we’re going to write a good constitution, we must eliminate as much ambiguity as possible. I always try to make these videos educational and recommend a bit of self-education.

There are two resources I’d highly recommend if you have the time. One is from Princeton University, a course on constitutional interpretation that lasts about seven weeks, taught by Professor Robert George. This course covers alternative approaches to interpreting the Constitution, the historical development of judicial review, the question of judicial supremacy in relation to Congress and the president, and the relations between the federal government and delegated and enumerated powers. The second resource is a book written by Antonin Scalia, titled "Reading Law: The Interpretation of Legal Texts." Many lawyers say if you want to learn how to write law and understand it, read Scalia because he was rigorous and careful.

I highly recommend picking up a copy if you want to become well-versed in this area. You can systematically build a system of interpretation for the Constitution, and your system may differ from how the current Supreme Court views it. At the very least, you’ll have an informed opinion on these rights. There’s always tension between lawmakers and judges over how we should handle these matters. This is not just an academic question; it’s relevant to us as an ecosystem because we are custodians of documents that will define what it means to be an ADA holder and a participant in the Cardano ecosystem.

We need to consider what governance means, what that government can and cannot do, especially regarding common goods the treasury of Cardano. We should ask foundational questions: Are we comfortable with the Fifth Amendment being violated by another amendment, or should we try to make them interoperable? Depriving a person of life, liberty, or property without due process is antithetical to the bedrock principle of "innocent until proven guilty." This principle is ingrained in our society, and we often assume it’s an axiom everyone follows. However, if another amendment exists that allows for the removal of rights without conviction, that raises serious concerns.

This situation is extraordinarily dangerous. Just as a thought experiment, consider the protests in the United States in 2020, where some protesters attempted to secede and create their own special economic zone, claiming it wasn’t subject to U.S. law. A draconian interpretation of that could equate it to what the Confederates did.

Anyone who philosophically supports that movement could be accused of aiding and abetting those people and thus deemed ineligible for office. You might say, “That’s preposterous; you have to prove it.” However, under a strict interpretation of the 14th Amendment, no evidence or proof is required—just the accusation. A political investigation that does not result in a conviction is not due process. There was a trial in the legislative branch that was inconclusive and did not result in a conviction.

There are ongoing trials that could infer insurrection, and there’s a high probability Trump will be convicted of at least one of these. From that conviction, due process has been held, and thus he could be deemed to have committed insurrection and be ineligible. But is the mere accusation of something sufficient to disqualify someone? Doesn’t that seem to violate foundational constitutional principles? Wouldn’t a fair and reasonable court try to make these things compatible instead of allowing inconsistencies to exist?

We’ve been down this road before. In the late 19th century, there was a court case called Plessy v. Ferguson, which invented the concept of "separate but equal," allowing systemic racism to be codified in law for decades. This was never the intent of the people who wrote the Constitution, especially the amendments after the Civil War. If they wanted to create a separate but equal standard, they could have done so, but it was invented by biased judges and had to be overturned decades later after catastrophic consequences.

This illustrates the inherent danger of legislating from the bench and not connecting amendments to each other. We, as an ecosystem, must ensure that within our scope of affairs, we’re not just talking about life but also liberty and property—your ADA. Under what circumstances can you lose it? Can a transaction be frozen or reversed? Currently, that’s not possible in the system.

If you want that to be a constitutional right, we can certainly discuss it from a constitutional viewpoint. Under what circumstances can your liberty be violated? Let’s say privacy-preserving measures are put into the system. Are there escrow keys? Are there ways to de-anonymize things as the majority of the network comes together?

There are certainly ways to construct a system with those properties, but currently, they do not exist in Cardano. The analogies of real life and the political process carry over into the constructed world we have. It’s crucial that we stay informed and have opinions. The two resources I mentioned will help you think more analytically about these issues. What’s happened in the United States is unfortunate chaos and partisanship, where we abandon our principles and first-principle thinking in exchange for team loyalty.

Suddenly, due process doesn’t matter because “orange man bad.” It’s okay to arrest your political opponents because of this. And what? It’ll happen on the other side too. When the Republicans regain full power, which will happen if not in 2024, then in 2028 or beyond, the full weight of the federal government will be used to persecute every political opponent.

The norms are now well established. Special prosecutors can be assigned at any time, and institutions the FBI and DOJ can become highly politicized. There are really no checks and balances to stop this anymore. They’ll say, “You did it to us, so we can do it to you.” If you argue that it’s not fair, they’ll respond, “You didn’t cry out when it happened on the other side.

” The world is watching, and they see that the person leading the polls has been arrested by the current president. That’s what happens in banana republics, not in a well-established constitutional republic that was founded on liberty. We have 200 years of norms that have been thrown away. These issues don’t exist in a vacuum; they live in a broader context and infiltrate everything we do. If your opinion is that your ownership of ADA is not a universal objective thing but contextual to who you are and whether I politically agree with you, we’re going to run into a lot of problems as an ecosystem.

Just like if your application of the law is based on your politics or personal feelings about someone, we’re in a very bad state. This is the first time in my life that I’ve seen a court apply a standard where they can deprive someone of a right they are born with—the right to represent and lead—without due process. This is being accepted wholesale by an entire political party, and it’s wrong. It’s universally wrong, regardless of the individual involved. There’s no objective way to apply such a standard without due process to any individual in any context.

This situation will have to be corrected, and when it is, the court that corrects it will be accused of being partisan. The headlines will focus on the three Supreme Court justices appointed by Trump backing their guy, rather than the fact that they corrected a significant constitutional breach. At Intersect, we have a Civics Committee. If you’re interested in these issues, do join us. The algorithmic representation of law is an ongoing project, and one of our goals in 2024 is to develop a domain-specific language to represent law in an unambiguous way.

I’ll leave you with a constructed language called Lojban, which many of you may not have heard of. It was created in the 1970s and is one of my favorite languages. It’s an example of a language engineered from the ground up to be unambiguous, meaning you say exactly what you mean. It’s quite difficult to speak and even harder to learn, but it’s inspired by predicate logic and aims to remove as much ambiguity as possible. This makes it a perfect language for machine translation of laws and rules.

There are many ways to design languages that remove ambiguity, which is effectively what programming languages do. When writing a constitution, you first get a sense of the overall community ethos, and then you express that in increasingly rigorous formalism. This is what we did with the Cardano protocol, where we wrote it in formal mathematics, and now it’s being translated to Agda, which has a machine-executable specification, meaning there’s zero ambiguity. White papers have moderate ambiguity because the concept of ideal functionality standards must be set. Just some food for thought: life is hard, and conversations are hard.

It requires cognitive work to be a thinking person. Liberty requires you to be informed. If you are comfortable living in a dictatorship, you don’t have to know anything or have an opinion on anything; you can let others run your life on autopilot. If you want to live in a free society where your life, liberty, and property are your god-given rights, you must manage them. You need the freedom to make mistakes and to be wrong.

You must also put constraints in place to prevent people, including the government, from stealing those rights from you. It’s not always going to be your dad; sometimes, it’s an adversary. There must be checks and balances, and the rule of law must be applied equally to everyone. This is a great example of how our institutions continue to degrade and deteriorate, and it’s getting worse. We have to be better and grow and evolve if we want to get out of this situation.

Through that example, we can rebuild systems that are substantially better. We can move from “don’t be evil” to “can’t be evil by design.” That’s why blockchain will always have a market; it’s hard to trust people. The more we can rely on deduction and derivation and the good old, dry code of the world, the easier it is to focus on the small things that humans need to be involved in. I hope this helps.

I wish you all a Merry Christmas and happy holidays. Hopefully, I’ll see you before then, but if I don’t, please enjoy the rest of the year. Cheers, everyone!