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I am reminded of the words of Lysander Spooner [1]: "[T]he Constitution is no such instrument as it has generally been assumed to be; but that by false interpr

I am reminded of the words of Lysander Spooner [1]: "[T]he Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. ... 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. In either case, it is unfit to exist." [1] http://lysanderspooner.org/node/64 http://lysanderspooner.org/node/64

mpyne 13y ago
Sure, but in a country of 300 million there will always be people who can make that argument about a constitution that forms any system of government. "Oh no, this government sucks and the constitution either authorized it or failed to prevent it from happening, ergo the constitution also sucks!"
- jeremy6d 13y ago
  So maybe polities of less than 300 million?
  - mpyne 13y ago
    I'm not even sure you could find even 3 people who agree on absolutely every single minute detail of how best to form a government (oh, and whose opinions never diverge over time). After all, if you could do that why would you even need to hold elections at all, if everyone always agreed there'd be practically no need to have decision makers anyways.
rayiner 13y ago
There isn't a necessity for false interpretations or naked usurpation here. If the Constitution said: "Congress shall pass no law... abridging the right of privacy" we'd be in a different boat. But that's not what it says. It just doesn't contemplate the kind of broad privacy right that attaches to information even as it flows in clear text through numerous computers on the internet. That's not surprising--the 4th amendment was specifically a response to the British government's invasive searches of peoples' houses. Indeed, the Supreme Court's position over the last 50 years has been "reading in" privacy rights in an ad hoc way. If there was a broad right of privacy in there, either explicitly in the text or implicitly in historical practice and understanding, don't you think the liberal Supreme Court's of the 1960's and 1970's that gave us Roe, etc, would have found it instead of having to resort to "penumbras"? Remember, striking down the actions of the political branches on the basis of unconstitutionality is a subversion of democracy. Sometimes it's necessary, but it's always a subversion of democracy. Calling everything we disagree with "unconstitutional" as ideologues are wont to do, is basically just saying "I hate the political consensus so my ideals should override the voters' decisions."
- ataggart 13y ago
  I enjoy how your response to Spooner's criticism of the Constitution is to declare that the Constitution permits these invasive acts. >If the Constitution said: "Congress shall pass no law... abridging the right of privacy" we'd be in a different boat. No we wouldn't.[1] We'd still have some people[2] coming along and making whatever arguments are needed in order to preserve and expand the state. One way might be to constantly frame government power only in terms of explicit limits, with the default being otherwise unchecked power. Such limits can then be read to mean whatever those in power wish them to mean.[3] [1] http://en.wikipedia.org/wiki/Schenck_v._United_States http://en.wikipedia.org/wiki/Schenck_v._United_States [2] http://www.youtube.com/watch?v=znQe9nUKzvQ http://www.youtube.com/watch?v=znQe9nUKzvQ [3] http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm
  - rayiner 13y ago
    > I enjoy how your response to Spooner's criticism of the Constitution is to declare that the Constitution permits these invasive acts I declare it because it's true, at least as the law stands right now. The Constitution doesn't just say whatever you want it to say. The fact that the actions are "invasive" doesn't mean they're unconstitutional. Did you know that a lawyer in a civil litigation can use the power of the courts, through a subpoena, to obtain nearly any information or force nearly anyone to testify as long as it's relevant to a litigation? And that subpoena is enforced through the threat of contempt of court? This is incredibly invasive, yet it's a basic feature of our court system. From an 1802 Evidence textbook: "It is the undoubted legal constitutional right of every subject of the realm who has a cause depending to call upon a fellow subject to testify what he may know of the matters in issue and every man is bound to make the discovery unless specially exempted and protected by law." The balance that has been struck in our system is not one where the protection of "privacy" trumps all other concerns. Indeed, the scale is heavily tilted the other way: the government, especially pursuant to a court order, has broad powers to seek out information subject to specific protections (4th, 5th amendment).
    - ataggart 13y ago
einhverfr 13y ago
The Constitution is a set of rhetorical norms and constraints, nothing more and nothing less.

mpyne 13y ago

Sure, but in a country of 300 million there will always be people who can make that argument about a constitution that forms any system of government. "Oh no, this government sucks and the constitution either authorized it or failed to prevent it from happening, ergo the constitution also sucks!"

jeremy6d 13y ago
So maybe polities of less than 300 million?
- mpyne 13y ago
  I'm not even sure you could find even 3 people who agree on absolutely every single minute detail of how best to form a government (oh, and whose opinions never diverge over time). After all, if you could do that why would you even need to hold elections at all, if everyone always agreed there'd be practically no need to have decision makers anyways.

rayiner 13y ago

There isn't a necessity for false interpretations or naked usurpation here. If the Constitution said: "Congress shall pass no law... abridging the right of privacy" we'd be in a different boat. But that's not what it says. It just doesn't contemplate the kind of broad privacy right that attaches to information even as it flows in clear text through numerous computers on the internet. That's not surprising--the 4th amendment was specifically a response to the British government's invasive searches of peoples' houses. Indeed, the Supreme Court's position over the last 50 years has been "reading in" privacy rights in an ad hoc way. If there was a broad right of privacy in there, either explicitly in the text or implicitly in historical practice and understanding, don't you think the liberal Supreme Court's of the 1960's and 1970's that gave us Roe, etc, would have found it instead of having to resort to "penumbras"? Remember, striking down the actions of the political branches on the basis of unconstitutionality is a subversion of democracy. Sometimes it's necessary, but it's always a subversion of democracy. Calling everything we disagree with "unconstitutional" as ideologues are wont to do, is basically just saying "I hate the political consensus so my ideals should override the voters' decisions."

ataggart 13y ago
I enjoy how your response to Spooner's criticism of the Constitution is to declare that the Constitution permits these invasive acts. >If the Constitution said: "Congress shall pass no law... abridging the right of privacy" we'd be in a different boat. No we wouldn't.[1] We'd still have some people[2] coming along and making whatever arguments are needed in order to preserve and expand the state. One way might be to constantly frame government power only in terms of explicit limits, with the default being otherwise unchecked power. Such limits can then be read to mean whatever those in power wish them to mean.[3] [1] http://en.wikipedia.org/wiki/Schenck_v._United_States http://en.wikipedia.org/wiki/Schenck_v._United_States [2] http://www.youtube.com/watch?v=znQe9nUKzvQ http://www.youtube.com/watch?v=znQe9nUKzvQ [3] http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm
- rayiner 13y ago
  > I enjoy how your response to Spooner's criticism of the Constitution is to declare that the Constitution permits these invasive acts I declare it because it's true, at least as the law stands right now. The Constitution doesn't just say whatever you want it to say. The fact that the actions are "invasive" doesn't mean they're unconstitutional. Did you know that a lawyer in a civil litigation can use the power of the courts, through a subpoena, to obtain nearly any information or force nearly anyone to testify as long as it's relevant to a litigation? And that subpoena is enforced through the threat of contempt of court? This is incredibly invasive, yet it's a basic feature of our court system. From an 1802 Evidence textbook: "It is the undoubted legal constitutional right of every subject of the realm who has a cause depending to call upon a fellow subject to testify what he may know of the matters in issue and every man is bound to make the discovery unless specially exempted and protected by law." The balance that has been struck in our system is not one where the protection of "privacy" trumps all other concerns. Indeed, the scale is heavily tilted the other way: the government, especially pursuant to a court order, has broad powers to seek out information subject to specific protections (4th, 5th amendment).
  - ataggart 13y ago

einhverfr 13y ago

The Constitution is a set of rhetorical norms and constraints, nothing more and nothing less.