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0 pointsrayiner13y ago0 comments

> The Constitution is arguably no longer the governing law for the US Federal Government.

I can't think of a federal action, even this one, that is blatantly unconstitutional. The problem is that you don't like what the Constitution says. You want things like the 4th amendment, which protects you against invasive searches of your home and person, to apply to information like that the NSA is collecting that is not private at all (and indeed is not even in your possession, being collected and stored by an independent third party).

You want to act like the government has turned away from the Constitution, but the case is rather that you want to re-litigate the boundaries of Constitutional protections. There has never been the kind of blanket protection of "privacy" that technologists like to claim applies to the internet. "Privacy" in that sense is a concept that largely post-dates the founding (the 4th amendment is better understood not as a privacy protection, but as a protection against the indignity and invasiveness of illegal searches). If the founders had meant to create a blanket protection of "privacy" they would have done so.

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betterunix13y ago· 1 in thread

"I can't think of a federal action, even this one, that is blatantly unconstitutional"

That is because you have a conservative view of the role of government and of the constitution. From where I sit, these things are all unconstitutional:

https://en.wikipedia.org/wiki/Free_speech_zone (should be obvious)

https://en.wikipedia.org/wiki/Adam_Walsh_Child_Protection_an... (ex post facto law)

https://en.wikipedia.org/wiki/War_on_drugs (lack of authority; alcohol prohibition required a constitutional amendment, and this should too)

https://en.wikipedia.org/wiki/Iraq_War (no formal declaration of war by Congress, not that this is news)

Now, I am sure there are various backflips and acrobatics that can be done to interpret the constitution to allow all of the above. Really though, we can save ourselves the effort; the constitution is just not as important as it used to be. Executive branch power has expanded far beyond the scope of the constitution. Congress keeps passing laws without regard to the constitution. The courts have generally failed to strike down unconstitutional laws. Why waste our mental energy trying to figure out how today's government is still in line with the constitution, when we could instead just admit that the constitution is just a guideline that is freely ignored?

rayinerOP13y ago

It's not a matter of engaging in backflips or acrobatics. It's a matter of reading provisions of the Constitution in historical context, not interpreting every provision in the broadest possible way in which it could be interpreted, and handling tensions between Constitutional provisions through balancing instead of just picking our favorite provision and giving it maximal effect.

1) Free speech zones: At the time of the founding, state police power was considered nearly unlimited, and the First Amendment didn't apply to the states at all. So how do you reconcile the state's police power with the right of people to peacefully assemble? The answer does not have to be "you have to read the right to assemble in the broadest way possible to the exclusion of any legitimate state interest in policing." That's one mode of interpretation, but that's not the only justifiable one.

2) The Adam Walsh Act. Not an ex post facto law because it doesn't directly change the criminal status of any person, but rather directs, optionally, states to conform their registration laws to certain standards. Many states do not have ex post facto clauses in their state Constitutions. See: http://congress-courts-legislation.blogspot.com/2011/01/stat....

3) Iraq War: The Constitution does not say that Congress must declare war before any hostilities are initiated. It just says that "The Congress shall have Power... To declare War..." Absent much guidance as to what this provision means, we can look to historical practice. And almost immediately we see that no formal declaration of war (whatever that is--the Constitution never uses the term) was considered necessary when presidents of the founding fathers' generation engaged in hostilities with Tripoli and Algiers, within just a few decades of the founding.

This is not to try and convince you of these points. Rather, it's an attempt to show that reasonable minds may differ. Conservative views of Constitutional interpretation are not illegitimate ones, and indeed are informed by the basic mode of common law legal interpretation that the founders themselves were familiar with.

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