Why I Care About The NSA Spying

[Kheldarson]

Also, what type of crazy logic is it that courts shouldn't be able to decide things? That is why the Supreme Court exists, after all. To decide if something is constitutional or not.

I think he more meant that the Courts can't decide how things apply ahead of time. Like they can state in a case that X situation is unconstitutional, but they shouldn't go on to say that it's OK in Y situation. That means that they're making legislative and/or executive decisions.

[Gravekeeper]

I would say it's more accurate, as a commentary on the larger scope of things, to say that popular opinion changes, the Constitution doesnt. Which is the inherent beauty of the document, set in place to oppose the sway of opinions.

The Constitution does change and has an inbuilt mechanism to be changed if and when needed. The most recently ratified amendment was in 1992. Prior to that, 1972, 1967, 1964, 1961, 1951, 1933, 1920, 1919 and 1913 for the last century.

In fact there are four amendments still pending from as far back as 1789.

I would argue that the the flaw with the Constitution is not that it is unchanging, but rather that it does not change fast enough to keep up with the times. Its status as a mythical sacred cow hampers the US's ability to keep up with things like technology. It seems like the court spends near all of its time trying to figure out what the Constitution says instead of what it should say.

The 4th being applied to digital documents is not very vague at all, being no more an adaptation than the 1st or 2nd to modern times. The only people who wish to make it a difficult adaptation are those who want to twist the meaning, because it's too difficult to change the original text.

The 1st and 2nd amendment have gone through a *lot* of legal back and forth hammering out what they mean in a modern setting. The 2nd amendment especially. In 1876 the Supreme Court ruled that the 2nd Amendment does NOT grant private citizens the Constitutional right to bear arms ( Because they didn't want black people to have them ). In fact that right was not explicitly laid out by the Supreme Court until 2008. Which later revised itself in 2010 and the debate STILL continues as to the purpose and intend of the 2nd amendment and how to apply it to modern times.

[D_Yeti_Esquire]

The Constitution does change and has an inbuilt mechanism to be changed if and when needed. The most recently ratified amendment was in 1992. Prior to that, 1972, 1967, 1964, 1961, 1951, 1933, 1920, 1919 and 1913 for the last century.

In fact there are four amendments still pending from as far back as 1789.

True enough. My line about the Constitution not changing was honestly more figurative than literal. It is intentionally slow to change. I was contrasting that with Supreme Court interpretations which change by the decade and decisions which happen multiple times a year as well as laws which can change as quickly as every two years.

It's interesting how active the American public was at one time in engaging the system pre-Gen X. Maybe that's a bit of a millenial problem. Their most recent model of American citizenship was an apathetic one. Hence you see more libertarianism, less understanding/tolerance for the social contract, and less of a sense of individual ability to effect major outcomes through grassroots movements. Hell, about the only thing we've been able to amend sine 1972 was... restraining congressional salaries.

[Signmaker]

The Constitution does change and has an inbuilt mechanism to be changed if and when needed.

I would argue that the the flaw with the Constitution is not that it is unchanging, but rather that it does not change fast enough to keep up with the times. Its status as a mythical sacred cow hampers the US's ability to keep up with things like technology. It seems like the court spends near all of its time trying to figure out what the Constitution says instead of what it should say.

Again, the idea behind the document being difficult to change is to protect our laws from rapidly altering with popular opinion of the day. As an example:

In 1876 the Supreme Court ruled that the 2nd Amendment does NOT grant private citizens the Constitutional right to bear arms ( Because they didn't want black people to have them ).

This is why I say that the only purpose for claiming the BOR is unclear or outdated, is a workaround for altering the original intent of the enumerated protections. I would even go as far as to claim the terminology used in the BOR was intentionally left devoid of specific period technology to prevent it being made void as technology changed. It should not matter if your document is written on pressed parchment with a quill, or embedded into a DNA sequence code and injected into your body, you still have the right to security for that document pending due course of law.

Of course, I dont think the original drafters had the foresight to imagine large numbers of people being so daft that they could be convinced of things like "the people" not really meaning the people.

[D_Yeti_Esquire]

I don't think the founders were that myopic though. They created the Supreme Court and one of John Marshall's most influential decisions was the concept of judicial review. Everyone knew interpretation was going to be a thing.

Today, most studies (that aren't biased one direction or the other) on how the court works would study the concept of strict constructionism vs.loose constructionism in how the Supreme Court's members tend to vote. Generally liberals tend to be loose and conservatives tend to be strict. I tend to not buy that though, because I really think it has more to do with the fact that liberals tend to try to use the intent of the document to provide rights using broader strokes than conservatives do before actual protection laws are in place so quite honestly they argue the "idea of" more. Conservatives, often trying to tap the brakes on (pick a cause) default to the letter of the constitution as written. Of course that doesn't hold when conservatives want corporations to be people or to keep weapons in the hands of people despite those people not actually being in the national guard. So I tend to view strict/loose as essentially a preference for all of them which serves their political inclinations.

That's just it: even our final arbiter of what the constitution actually says tends to be highly politicized, just in its own way. And frequently one that will get it right before the "people" can be bothered to form a consensus. It's just it even takes them a while.

[s_stabeler]

there's another distinction that is important too, when interpreting the Constitution. Specifically, there are a number of specifically stated rights in the constitution. Is that list exhaustive ( in other words, if a right isn't specifically stated in the constitution it isn't a right) or not( in other words, new rights can be recognized by court decision or legislative action, rather than by Constitutional Amandment)- I'm generally of the view that the list isn't exhustive, incidentally, for instance, I believe the 4th amendment implies a right to privacy.

[Signmaker]

I tend to not buy that though, because I really think it has more to do with the fact that liberals tend to try to use the intent of the document to provide rights using broader strokes than conservatives do before actual protection laws are in place so quite honestly they argue the "idea of" more.

The document does not provide rights, all rights are inherent. It only provides strict allowances for the federal goverment to act upon rights.

Also, modern liberals and modern conservatives use broad and tight interpretations of the document on a case by case basis, as they see fit. See the broad strokes modern conservatives make when dealing with the commerce clause, and the tight scrutiny of the 2nd Amendment that modern liberals use.

Incidentally the National Guard has nothing to do with the 2nd amendment, since they are not under the control of the people, but the state. The 2nd lists it's purpose as being for the security of the state, and it's action being the people keeping and bearing arms. While the NG is for the purpose of the security of the state, it does so by the state keeping and bearing arms, not the people.

there's another distinction that is important too, when interpreting the Constitution. Specifically, there are a number of specifically stated rights in the constitution. Is that list exhaustive ( in other words, if a right isn't specifically stated in the constitution it isn't a right) or not( in other words, new rights can be recognized by court decision or legislative action, rather than by Constitutional Amandment)- I'm generally of the view that the list isn't exhustive, incidentally, for instance, I believe the 4th amendment implies a right to privacy.

10th Amendment. The concept is anything and everything is a right, from chewing gum to mass murder. If the federal government is not granted the power to pass law against it, it defaults to the states and their constitutions. If they in turn are not granted power to pass law against it, it remains a right, untouchable by government.

Of course that gets all fucked up when they take something like the general welfare clause, and claim it gives them the power to do anything and everything they want, as long as it can somehow be articulated as being for the general welfare.

[HYHYBT]

Of course that gets all fucked up when they take something like the general welfare clause, and claim it gives them the power to do anything and everything they want, as long as it can somehow be articulated as being for the general welfare.

...and, combined with actual amendments being extremely difficult to pass, that's a good thing. It allows for adaptation while cutting down on risk.

[Signmaker]

...and, combined with actual amendments being extremely difficult to pass, that's a good thing. It allows for adaptation while cutting down on risk.

Eh, in a perfect world, yes. For the real world of politics, I would have added in some language clarifying things, like when "common good" butts against an enumerated right. If they claim violating security of one's person without due process (held without trial) provides for the common good (fights terrorism), are they allowed to do it via the General Welfare clause, or prohibited from doing it under the 4th Amendment? Which holds more power?

At that point, it goes to the Supreme Court for decision, which has it's own pitfalls, especially because they have a "no harm, no foul" policy of someone actually needing to be the damaged party, in order to bring a ruling. A tricky requirement to meet in regards to spying in the digital age.

[D_Yeti_Esquire]

Just to join in the quote parade, here is the full text of the 2nd.

A well regulated militia, being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

Every NG member is a member of a well regulated militia. That's what the National Guard is besides being considered reservists. It was established under Title 10 and Title 32 of the US Code (I didn't know the specifics, I just looked it up.) I get your argument, but it flies in the face of the text of the actual document and the actual designed goals of the National Guard. "A Well Regulated militia" was not designed to combat the federal government. It was designed at a time when foreign incursion could happen more quickly than the Federal Government could react, hence the blessing of the Federal government.

The document does not provide rights, all rights are inherent.

Philosophically yes, in reality no. The document provides a basis for limiting government incursion into individual rights or specifically limitations of the social contract. It sort of turns into splitting hairs though.

[Hyena Dandy]

It was established under Title 10 and Title 32 of the US Code (I didn't know the specifics, I just looked it up.) I get your argument, but it flies in the face of the text of the actual document and the actual designed goals of the National Guard. "A Well Regulated militia" was not designed to combat the federal government.

That's not my point, however, about the Constitutional amendments limiting power. Whether the militia is to combat the government or not is irrelevant. Either way, it limits what the government can and can't DO. In that case, infringe on the right of people to keep and bear arms.

[Andara Bledin]

Fun fact: the whole "militia" part of the 2nd really has nothing to do with the right to bear arms. It was a framing statement, not a requirement.

[Hyena Dandy]

Edit: Nevermind. Discussion of the 2nd amendment is quite off-topic at the moment.

[D_Yeti_Esquire]

It was also only a minor example that someone took issue with.

@Andara - United States v. Miller tested that theory and the Court used the militia clause to strike the right to bear sawed off shotguns. Later you have the Roberts court overturn that part, but that's a more conservative leaning court.

Really the entire reason the 2nd ended up in this was just an example of how much a seemingly apparent statement given to interpretation due to perspective ultimately becomes whim of the court. Were we wrong in 1938 or now? If it was that apparent, why was it the Roberts court in the 2008 that got to it? Generally how you answer that question depends on what you agree with. Nothing to do with the NSA at all except the same thing happens when you parse the 4th.