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It's incredible how far we've come from the original intent of the Constitution. The reason the Bill of Rights isn't baked in is because the Constitution enumer

It's incredible how far we've come from the original intent of the Constitution. The reason the Bill of Rights isn't baked in is because the Constitution enumerated a small set of limited powers to the federal government, with the assumption (articulated in the Tenth Amendment) that all other powers were reserved for the states and for the people. Thankfully the states demanded the Bill of Rights at ratification. Without it, we would have lost all of the rights listed by now, due to the rampant power-grabs of the federal government since the founding. Although Snowden's lawyer claims the Bill of Rights was supposed to make the government's job "more difficult," he is missing a larger point: almost all of what the federal government does today is not it's job at all! Nothing in the Constitution grants the federal government power to do most of its current functions.

fweespeech 11y ago
It isn't just the federal government. State governments are just as bad. http://www.thenation.com/article/charged-crime-filming-slaughterhouse/ http://www.thenation.com/article/charged-crime-filming-slaug... http://www.theblaze.com/stories/2014/12/05/iowa-judge-rules-states-laws-banning-flag-burning-are-unconstitutional/ http://www.theblaze.com/stories/2014/12/05/iowa-judge-rules-... And that is just the 1st amendment recently.
- alanwatts 11y ago
  The Constitution is, after all, just a piece of paper, so it can easily be ignored and misinterpreted without the system breaking and throwing an "error message". Paper has no power to enforce the rules written on it. Digital systems, however, are programmed deterministically and do not have such problems: >"The only way to ensure the human rights of citizens around the world are being respected in the digital realm is to enforce them through systems and standards rather than policies and procedures." https://www.reddit.com/r/IAmA/comments/2wwdep/we_are_edward_snowden_laura_poitras_and_glenn/couqgc5 https://www.reddit.com/r/IAmA/comments/2wwdep/we_are_edward_...
  - danharaj 11y ago
    What exactly is the difference between systems and standards and policies and procedures? Algorithmic systems can be internally deterministic and consistent, but always always the problem is ascribing significance to symbols. Rights and laws try to solve fundamentally ill-posed problems. Rights and laws inevitably conflict with each other and the baroque complexity of law is the result of top-down systems attempting to resolve such inconsistencies as they arise. I for one do not welcome our algorithmic overlords. It sounds like the revenge of Han Feizi and the Legalists, who wanted to bind all human behavior to a systematic, all-pervading set of rules and thus bring human subjects into perfect harmony with the state. I do not see why systems and standards are better than policies and procedures.
    - alanwatts 11y ago
      >What exactly is the difference between systems and standards and policies and procedures? Policies and procedures are paper based sets of instructions. I.e. the 4th amendment. Systems and standards are electrically programmed. I.e. encryption. It is the difference between saying "this should not be done" and actually designing a system in which it cannot be done. >"The mere existence of the "police state" anywhere is the sure sign of old arrangements being propped up by newer forms that have already rendered the older forms irrelevant." -Marshall McLuhan, Take Today: The Executive as Dropout
- malnourish 11y ago
  If I remember correctly, the Bill of Rights only applies to the states when a case has been challenged and the amendment applied to the states via selective incorporation.
  - jayess 11y ago
    True, but with the addition of the second amendment through DC v Heller, all of the bill of rights now applies to the states (expect, maybe, for the third amendment).
    - bradleyjg 11y ago
      Parts of each of the first eight amendments, leaving aside the third, have been incorporated against that states. But not the entirety of all of them. For example the Grand Jury clause off the Fifth Amendment and the Excessive Fines clause of the Eight Amendment have not been incorporated. The Ninth Amendment has sometimes been used as a partial basis of modern sexual privacy law (see penumbras and emanations) and inasmuch as those doctrines also apply to the state I guess you could say that the Ninth has kind-of, sort-of been (partially?) incorporated. It wouldn't make any sense to try to incorporate the Tenth Amendment.
ubernostrum 11y ago
Careful, there: you're falling victim to historical revisionism in assuming there was a clear unified "original intent" that we can discern, or that the fight was between "the federal government" and "the states". The writing of the Constitution, and the fight over its ratification and the initial amendments (which had opponents who worried just as equally about enumeration of rights being used to deny others later -- the Ninth Amendment tried to solve this but people today still argue "well, it's not in the Constitution so it's not a right") was complex and full of individuals with all sorts of motivations that can't easily be boiled down to such simple terms. And that's without getting into the fights over the Elastic Clause, or the Commerce Clause, or the other bits that underlie many of the things the federal government does today.
- notthegov 11y ago
  There's nothing complex or ambiguous about it. The United States' organic law is based in the acknowledgment of natural rights. Academics can debate if this has any legal enforcement or if the right of revolution is valid, but it doesn't matter to me. My rights existed prior to the Bill of Rights and the government. If a local, state, federal or international government tries to diminish or deny my rights, I will fight to alter or abolish their policies and their institutions. The FBI, NSA and DHS as a whole are enemies of human freedom and a threat to classical liberalism. There is no enumerated power that gives the federal government the authority to create a federal police force and what the NSA has done is unequivocally a crime. Pass a Constitutional Amendment to make it legal. Abolish the FBI. And build a new organization from the ground up. In the future, there won't be ISIS and there won't be the FBI. That is, if the future is of a better world.
  - sowhatquestion 11y ago
    > My rights existed prior to the Bill of Rights and the government "Existed" in what sense!? Are they deducible by pure reason? Were they written on stone tablets? Seriously though, the Constitution and the Declaration of Independence may refer to the idea of natural rights, but in my opinion this is due to the prevailing state of philosophy and political theory at the time, and doesn't bind Americans to forever understand their own rights in terms of "prior" natural rights that are "later" secured by the government.
rayiner 11y ago
The word "federal" is doing a lot of work in your argument. Would people opposed to a federal court ordering Apple to unlock an iPhone be okay with a state court doing it? I'm going to guess "no." Remember: the Bill of Rights didn't originally limit the states at all. That's a 20th-century invention. And unlike the federal government, the state governments were always understood to be ones with general--rather than enumerated--powers. As to your final point: while education or healthcare may arguably be outside the scope of the federal government's jurisdiction, national security and suppression of internal rebellion was one of the motivations for creating a strong federal government. Surveillance may be unconstitutional for other reasons, but it's definitely not outside the federal government's enumerated powers.
- theseatoms 11y ago
  > Would people opposed to a federal court ordering Apple to unlock an iPhone be okay with a state court doing it? I'm going to guess "no." This completely depends upon the given state's constitution. EDIT: I forgot about selective incorporation... I have some reading to do.
- maratd 11y ago
  > Would people opposed to a federal court ordering Apple to unlock an iPhone be okay with a state court doing it? I'm going to guess "no." If my state decides to do something demented, I can move to another state. If the thing they are doing is sufficiently demented that enough people move, it will have a material effect on the state. This creates a dynamic that disincentivizes stupidity. The barrier is substantially less for the federal government. It usually takes quite a bit of abuse before people start moving to another country. That makes the state vs federal argument relevant. > As to your final point: while education or healthcare may arguably be outside the scope of the federal government's jurisdiction, national security and suppression of internal rebellion was one of the motivations for creating a strong federal government. Okay ... is the FBI/DEA/TSA/etc. there to suppress internal rebellion? I think you can make a pretty good argument that that's true, but they certainly don't advertise themselves that way.
  - penrod 11y ago
deleted 11y ago
[deleted]
niels_olson 11y ago
This is a good line of thinking. Let's reframe this: We the people have an inalienable right to liberty. Which means We the people have a right to knowledge. Which means We the people have a right to algorithms. Which means We the people have a right strong crypto. Which means We the people have a right to work with others who have strong crypto. Which means We the people have a right to work with companies who provide us strong crypto. None of this means the government has a right to anything except their own strong crypto.
nunyabuizness 11y ago
>But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. - Lysander Spooner
jonathankoren 11y ago
I look forward to hearing your argument against maintaining an Air Force. The constitution lists and army and a navy. It doesn't say anything about an air force.
- clarkmoody 11y ago
  The Air Force started as a branch of the Army, which poses no constitutional problem I can see. Assuming there was a problem, I have no issue going through the amendment process to modify Article 1, Section 8 to include an Air Force. I'm surprised that of all the things the federal government does, this one merits a comment.
  - jonathankoren 11y ago
    The reason why I brought it up is because it illustrates just how flexible "strict textual constitutionalists" actually are. Like most political arguments, it quickly falls into "Well, I like this, so there." By a strict textual reading, without amendment, the Air Force has been unconstitutional since September 16, 1947, and so should be immediately remanded to several states, because there's no strict authority spawning from the 18th century for establishing an air force. The second amendment, also talks about bearing arms in the explicit context of "a well regulated [state] militia" and nothing else, but that gets washed over because, "I like my hobby."
superuser2 11y ago
>the states Surveillance isn't any more okay because it's at the state level instead of federal. In fact, I'd argue the more local the surveillance, the worse it is, because in federal government databases you are just a number, while your town/village government is more likely personally know you, your friends, and your family and have opinions about your lifestyle that they might share with those people.
- webXL 11y ago
  Unless all 50 states democratically permit warrantless surveillance, you'll have a place to go to get away from it. Now you might have to live with other kinds of government intrusion, but it's in a state's interest to stand out and attract tax-payers with a progressive set of laws. Codifying and institutionalizing draconian laws the national level doesn't leave us with any choice (if we want to stay in the U.S.A. of course).
dragonwriter 11y ago
> Although Snowden's lawyer claims the Bill of Rights was supposed to make the government's job "more difficult," he is missing a larger point: almost all of what the federal government does today is not it's job at all! I don't think he's missing the point. I think he is making the point that, even to the extent that government is serving legitimate purposes through powers that are unquestionably delegated to it in the Constitution, the Bill of Rights is intended to constrain the power of the government in ways which make it take more effort, because the alternative which leaves the governments job easier when it is well motivated also makes the government more dangerous when it has poor motives, both by endangering the innocent as targets of government action and by making it easier for the government to seem to be taking appropriate action while it neglects the real needs of the populace. Due process protections make the government demonstrate that it is taking action against the right parties when it takes certain actions.
ap22213 11y ago
Even if what you're saying is true, would you have given up all the economic, political, and influential gains that the U.S.A. has made since the federal government became powerful after the civil war? Without the strong federal government, where would the states be today? Philosophically, I probably agree with you: I'd like more individual rights, local rights, state's rights. But, if things had turned out differently, I'm pretty sure that our small fraction of the world's population would not control such a large portion of the world's wealth, and we wouldn't be living such comfortable lives. And, I'm sure that democracies would not be as wide spread as they are today.

fweespeech 11y ago

It isn't just the federal government. State governments are just as bad. http://www.thenation.com/article/charged-crime-filming-slaughterhouse/ http://www.thenation.com/article/charged-crime-filming-slaug... http://www.theblaze.com/stories/2014/12/05/iowa-judge-rules-states-laws-banning-flag-burning-are-unconstitutional/ http://www.theblaze.com/stories/2014/12/05/iowa-judge-rules-... And that is just the 1st amendment recently.

alanwatts 11y ago
The Constitution is, after all, just a piece of paper, so it can easily be ignored and misinterpreted without the system breaking and throwing an "error message". Paper has no power to enforce the rules written on it. Digital systems, however, are programmed deterministically and do not have such problems: >"The only way to ensure the human rights of citizens around the world are being respected in the digital realm is to enforce them through systems and standards rather than policies and procedures." https://www.reddit.com/r/IAmA/comments/2wwdep/we_are_edward_snowden_laura_poitras_and_glenn/couqgc5 https://www.reddit.com/r/IAmA/comments/2wwdep/we_are_edward_...
- danharaj 11y ago
  What exactly is the difference between systems and standards and policies and procedures? Algorithmic systems can be internally deterministic and consistent, but always always the problem is ascribing significance to symbols. Rights and laws try to solve fundamentally ill-posed problems. Rights and laws inevitably conflict with each other and the baroque complexity of law is the result of top-down systems attempting to resolve such inconsistencies as they arise. I for one do not welcome our algorithmic overlords. It sounds like the revenge of Han Feizi and the Legalists, who wanted to bind all human behavior to a systematic, all-pervading set of rules and thus bring human subjects into perfect harmony with the state. I do not see why systems and standards are better than policies and procedures.
  - alanwatts 11y ago
    >What exactly is the difference between systems and standards and policies and procedures? Policies and procedures are paper based sets of instructions. I.e. the 4th amendment. Systems and standards are electrically programmed. I.e. encryption. It is the difference between saying "this should not be done" and actually designing a system in which it cannot be done. >"The mere existence of the "police state" anywhere is the sure sign of old arrangements being propped up by newer forms that have already rendered the older forms irrelevant." -Marshall McLuhan, Take Today: The Executive as Dropout
malnourish 11y ago
If I remember correctly, the Bill of Rights only applies to the states when a case has been challenged and the amendment applied to the states via selective incorporation.
- jayess 11y ago
  True, but with the addition of the second amendment through DC v Heller, all of the bill of rights now applies to the states (expect, maybe, for the third amendment).
  - bradleyjg 11y ago
    Parts of each of the first eight amendments, leaving aside the third, have been incorporated against that states. But not the entirety of all of them. For example the Grand Jury clause off the Fifth Amendment and the Excessive Fines clause of the Eight Amendment have not been incorporated. The Ninth Amendment has sometimes been used as a partial basis of modern sexual privacy law (see penumbras and emanations) and inasmuch as those doctrines also apply to the state I guess you could say that the Ninth has kind-of, sort-of been (partially?) incorporated. It wouldn't make any sense to try to incorporate the Tenth Amendment.

ubernostrum 11y ago

Careful, there: you're falling victim to historical revisionism in assuming there was a clear unified "original intent" that we can discern, or that the fight was between "the federal government" and "the states". The writing of the Constitution, and the fight over its ratification and the initial amendments (which had opponents who worried just as equally about enumeration of rights being used to deny others later -- the Ninth Amendment tried to solve this but people today still argue "well, it's not in the Constitution so it's not a right") was complex and full of individuals with all sorts of motivations that can't easily be boiled down to such simple terms. And that's without getting into the fights over the Elastic Clause, or the Commerce Clause, or the other bits that underlie many of the things the federal government does today.

notthegov 11y ago
There's nothing complex or ambiguous about it. The United States' organic law is based in the acknowledgment of natural rights. Academics can debate if this has any legal enforcement or if the right of revolution is valid, but it doesn't matter to me. My rights existed prior to the Bill of Rights and the government. If a local, state, federal or international government tries to diminish or deny my rights, I will fight to alter or abolish their policies and their institutions. The FBI, NSA and DHS as a whole are enemies of human freedom and a threat to classical liberalism. There is no enumerated power that gives the federal government the authority to create a federal police force and what the NSA has done is unequivocally a crime. Pass a Constitutional Amendment to make it legal. Abolish the FBI. And build a new organization from the ground up. In the future, there won't be ISIS and there won't be the FBI. That is, if the future is of a better world.
- sowhatquestion 11y ago
  > My rights existed prior to the Bill of Rights and the government "Existed" in what sense!? Are they deducible by pure reason? Were they written on stone tablets? Seriously though, the Constitution and the Declaration of Independence may refer to the idea of natural rights, but in my opinion this is due to the prevailing state of philosophy and political theory at the time, and doesn't bind Americans to forever understand their own rights in terms of "prior" natural rights that are "later" secured by the government.

rayiner 11y ago

The word "federal" is doing a lot of work in your argument. Would people opposed to a federal court ordering Apple to unlock an iPhone be okay with a state court doing it? I'm going to guess "no." Remember: the Bill of Rights didn't originally limit the states at all. That's a 20th-century invention. And unlike the federal government, the state governments were always understood to be ones with general--rather than enumerated--powers. As to your final point: while education or healthcare may arguably be outside the scope of the federal government's jurisdiction, national security and suppression of internal rebellion was one of the motivations for creating a strong federal government. Surveillance may be unconstitutional for other reasons, but it's definitely not outside the federal government's enumerated powers.

theseatoms 11y ago
> Would people opposed to a federal court ordering Apple to unlock an iPhone be okay with a state court doing it? I'm going to guess "no." This completely depends upon the given state's constitution. EDIT: I forgot about selective incorporation... I have some reading to do.
maratd 11y ago
> Would people opposed to a federal court ordering Apple to unlock an iPhone be okay with a state court doing it? I'm going to guess "no." If my state decides to do something demented, I can move to another state. If the thing they are doing is sufficiently demented that enough people move, it will have a material effect on the state. This creates a dynamic that disincentivizes stupidity. The barrier is substantially less for the federal government. It usually takes quite a bit of abuse before people start moving to another country. That makes the state vs federal argument relevant. > As to your final point: while education or healthcare may arguably be outside the scope of the federal government's jurisdiction, national security and suppression of internal rebellion was one of the motivations for creating a strong federal government. Okay ... is the FBI/DEA/TSA/etc. there to suppress internal rebellion? I think you can make a pretty good argument that that's true, but they certainly don't advertise themselves that way.
- penrod 11y ago

deleted 11y ago

[deleted]

niels_olson 11y ago

This is a good line of thinking. Let's reframe this: We the people have an inalienable right to liberty. Which means We the people have a right to knowledge. Which means We the people have a right to algorithms. Which means We the people have a right strong crypto. Which means We the people have a right to work with others who have strong crypto. Which means We the people have a right to work with companies who provide us strong crypto. None of this means the government has a right to anything except their own strong crypto.

nunyabuizness 11y ago

>But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. - Lysander Spooner

jonathankoren 11y ago

I look forward to hearing your argument against maintaining an Air Force. The constitution lists and army and a navy. It doesn't say anything about an air force.

clarkmoody 11y ago
The Air Force started as a branch of the Army, which poses no constitutional problem I can see. Assuming there was a problem, I have no issue going through the amendment process to modify Article 1, Section 8 to include an Air Force. I'm surprised that of all the things the federal government does, this one merits a comment.
- jonathankoren 11y ago
  The reason why I brought it up is because it illustrates just how flexible "strict textual constitutionalists" actually are. Like most political arguments, it quickly falls into "Well, I like this, so there." By a strict textual reading, without amendment, the Air Force has been unconstitutional since September 16, 1947, and so should be immediately remanded to several states, because there's no strict authority spawning from the 18th century for establishing an air force. The second amendment, also talks about bearing arms in the explicit context of "a well regulated [state] militia" and nothing else, but that gets washed over because, "I like my hobby."

superuser2 11y ago

>the states Surveillance isn't any more okay because it's at the state level instead of federal. In fact, I'd argue the more local the surveillance, the worse it is, because in federal government databases you are just a number, while your town/village government is more likely personally know you, your friends, and your family and have opinions about your lifestyle that they might share with those people.

webXL 11y ago
Unless all 50 states democratically permit warrantless surveillance, you'll have a place to go to get away from it. Now you might have to live with other kinds of government intrusion, but it's in a state's interest to stand out and attract tax-payers with a progressive set of laws. Codifying and institutionalizing draconian laws the national level doesn't leave us with any choice (if we want to stay in the U.S.A. of course).

dragonwriter 11y ago

> Although Snowden's lawyer claims the Bill of Rights was supposed to make the government's job "more difficult," he is missing a larger point: almost all of what the federal government does today is not it's job at all! I don't think he's missing the point. I think he is making the point that, even to the extent that government is serving legitimate purposes through powers that are unquestionably delegated to it in the Constitution, the Bill of Rights is intended to constrain the power of the government in ways which make it take more effort, because the alternative which leaves the governments job easier when it is well motivated also makes the government more dangerous when it has poor motives, both by endangering the innocent as targets of government action and by making it easier for the government to seem to be taking appropriate action while it neglects the real needs of the populace. Due process protections make the government demonstrate that it is taking action against the right parties when it takes certain actions.

ap22213 11y ago

Even if what you're saying is true, would you have given up all the economic, political, and influential gains that the U.S.A. has made since the federal government became powerful after the civil war? Without the strong federal government, where would the states be today? Philosophically, I probably agree with you: I'd like more individual rights, local rights, state's rights. But, if things had turned out differently, I'm pretty sure that our small fraction of the world's population would not control such a large portion of the world's wealth, and we wouldn't be living such comfortable lives. And, I'm sure that democracies would not be as wide spread as they are today.