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The Founding Fathers of the USA were concerned about writing a Bill Of Rights because any natural right not enumerated therein might be construed as not being a

The Founding Fathers of the USA were concerned about writing a Bill Of Rights because any natural right not enumerated therein might be construed as not being a right at all. This is where we are with pervasive surveillance: being incapable of imagining/comprehending a surveillance system of this scale, it never dawned in them to protect anything more than "persons, papers and effects". At a time when just overhearing a conversation was hard enough to require concerted effort, they could not dream of a day when a significant percentage of every conversation among 300,000,000 people could be monitored and catalogued automatically at a not-prohibitive cost. Methinks: had they known, they would have not hesitated to prohibit it as explicitly as they did infringement of arms possession. Alas, the courts adhere only to the letter of the Constitution, not its spirit.

alexeisadeski3 13y ago
How do originalists regard digital privacy and speech protections? I'm pretty sure that they do afford all rights and protections to digital messages as to written letters, is that correct?
- ctdonath 13y ago
  It's not just the content, it's the metadata. Instant and total awareness of implied content thru comprehensive data mining goes far beyond what the Founding Fathers could imagine.
  - alexeisadeski3 13y ago
    I know that it's not just the content. Originalists don't require that the 'Founding Fathers' have known the future: Originalists allow assault rifles to be protected under the 2nd. They allow, presumably, emails and internet newspapers to have full 1st protections. Thus my question is... have any originalists weighed in on this particular subject?
jessriedel 13y ago
It's perfectly consistent to think that non-enumerated rights should be protected by lawmakers without thinking that judges should enforce them. Remember, judicial review isn't even codified in the constitution. (If the framers had both considered and wanted judicial review, they obviously would ave written it in.) If we let judges infer non-enumerated rights, they could do anything. It's one thing to allow an unelected person interpret written word, but it's crazy to let the effectively create new rights based on their personal conceptions. Instead, the failure is with lawmakers.
- Zigurd 13y ago
  > If we let judges infer non-enumerated rights, they could do anything. You are conflating rights with entitlements. The nature of non-enumerated rights is clear: Everything that is outside the enumerated powers of government, until the people decide to add to those powers through the amendment process. We are safe from judges doing "anything."
  - jessriedel 13y ago
    See my response to ctdonath.
- ctdonath 13y ago
  If we let judges infer non-enumerated rights, they could do anything. No, they can't. A parallel argument against writing the Bill Of Rights was that it was completely redundant: every enumerated right was already protected by the limited granting of powers to the government. Remember, the US government starts as nothing and is granted highly restricted powers (not the imposition of limits on an otherwise unlimited government, as most seem to think). There are plenty of other rights, regardless of enumeration, which likewise the government is not authorized to limit. The problem is there's an overlooked difference between positive rights vs negative rights. Positive rights, enacted by legislation, require others to facilitate one's actions. Negative rights, requiring no legislation save for active protection thereof, require nothing more from others than benign neglect. The whole premise of the US Constitution is full recognition of negative rights: lawmakers are not empowered to hinder anyone's actions beyond a small and specific delegation of powers, much less compel others to facilitate someone's alleged positive right. The "create new rights based on their personal conceptions" you worry about are wholly positive rights, anathema to the Constitution and core American principles because they are based on compulsion of others to facilitate that new legislated/adjudicated "right". Rights, as understood in the Constitution, are nothing more than people doing what they see fit so long as others are not wronged in the process, and the legislative & judicial processes exist solely to identify & resolve these conflicts when they do arise.
vezzy-fnord 13y ago
Technically they wrote the Ninth Amendment for that, but it's very vague and there's no real consensus on its judicial interpretation.
- alexeisadeski3 13y ago
  The Ninth Amendment is bizarre.
pekk 13y ago
So what does this argument give you license to do?
- ctdonath 13y ago
  The point is that the government has not been empowered to monitor all electronic conversations, even when argued as "it's just everyone's metadata". Such monitoring is not natural common knowledge (of the "hey, anybody walking down the street could see you were talking to Joe" variety) and required an objective active threatening intrusion (of the "let us install a secret massive data tap in your communications hub, or we'll crush your business and throw you personally in jail" variety). The wording in the Constitution constituting a "right to privacy" was written by authors understandably ignorant of how incredible technologies centuries hence could/would be abused; had they foreseen such abuses, they would have tweaked the wording a small but critical amount to better specify granted powers and clarify the limitations thereon. To wit: if Jefferson, Hancock et al knew how extensive & pervasive surveillance would be, they'd have made sure the powers granted to government would NOT have included such wholesale monitoring, and would have clarified it with refinements to the 4th Amendment wording.
pstack 13y ago
Unfortunately, our education system does not teach us that the Constitution is a framework setting form constraints upon the government, but as a framework establishing and itemizing a list of freedoms citizens are allowed. So, we have an entire population that assumes if it is not enumerated in the Constitution, you do not have that right. For example "hey, the Constitution doesn't say privacy is a right". Well, no. It doesn't need to. You already have that right, without a piece of paper declaring it. Unfortunately, I'm afraid that this understanding of the Constitution has become so pervasive that it can not be changed, thereby completely reversing the entire intention of the founding fathers in constructing it. Thereby giving the government all the rights and citizens only the rights specifically declared in it (and, these days, not even that). It's kind of stomach-turning to see that reversal.
- genwin 13y ago
  I'd say half the population never question laws. If they even know the Constitution they still believe that every law is constitutional, and judges who strike down laws are "activist judges". This type of person would've jailed Rosa Parks and thought she was a bad person. Marijuana illegal? Then of course it should never be legal. Etc.
- x0054 13y ago
  Though this is slightly unrelated, today I tried to buy some Antibiotic eye droplets for my dog. It's not possible without a prescription. For a DOG! I love my dog, he is awesome. But legally, he is my property. I can kill him if I want to, sell him to a research center to be experimented on, or just let him go blind from the eye infection he picked up. But I can not buy meds for him without first taking him to an undereducated, glorified nurse (vet). So I had to go to a vet, pay $50 so he can poke my dog around with his finger, and then write me a prescription for the exact fucking drug I was trying to buy in the first place! The point is, like you mentioned, the constitution enumerates the Power of the federal government, not JUST the limitations on the said government! This means, if it's NOT in the constitution, then the government does NOT have that power, and I DO. The constitution says nothing about regulation of drugs, mass surveillance, or privacy. This means I HAVE those rights and the government has NO right to infringe my rights. Pretty soon I'll have to consult with a "licensed professional" to take a shit, and the NSA will have a camera at the bottom of my toilet, thus completing their constitutionally prescribed mission of crawling up the ass of every American, to make sure that no terrorists hide there, of course.

alexeisadeski3 13y ago

How do originalists regard digital privacy and speech protections? I'm pretty sure that they do afford all rights and protections to digital messages as to written letters, is that correct?

ctdonath 13y ago
It's not just the content, it's the metadata. Instant and total awareness of implied content thru comprehensive data mining goes far beyond what the Founding Fathers could imagine.
- alexeisadeski3 13y ago
  I know that it's not just the content. Originalists don't require that the 'Founding Fathers' have known the future: Originalists allow assault rifles to be protected under the 2nd. They allow, presumably, emails and internet newspapers to have full 1st protections. Thus my question is... have any originalists weighed in on this particular subject?

jessriedel 13y ago

It's perfectly consistent to think that non-enumerated rights should be protected by lawmakers without thinking that judges should enforce them. Remember, judicial review isn't even codified in the constitution. (If the framers had both considered and wanted judicial review, they obviously would ave written it in.) If we let judges infer non-enumerated rights, they could do anything. It's one thing to allow an unelected person interpret written word, but it's crazy to let the effectively create new rights based on their personal conceptions. Instead, the failure is with lawmakers.

Zigurd 13y ago
> If we let judges infer non-enumerated rights, they could do anything. You are conflating rights with entitlements. The nature of non-enumerated rights is clear: Everything that is outside the enumerated powers of government, until the people decide to add to those powers through the amendment process. We are safe from judges doing "anything."
- jessriedel 13y ago
  See my response to ctdonath.
ctdonath 13y ago
If we let judges infer non-enumerated rights, they could do anything. No, they can't. A parallel argument against writing the Bill Of Rights was that it was completely redundant: every enumerated right was already protected by the limited granting of powers to the government. Remember, the US government starts as nothing and is granted highly restricted powers (not the imposition of limits on an otherwise unlimited government, as most seem to think). There are plenty of other rights, regardless of enumeration, which likewise the government is not authorized to limit. The problem is there's an overlooked difference between positive rights vs negative rights. Positive rights, enacted by legislation, require others to facilitate one's actions. Negative rights, requiring no legislation save for active protection thereof, require nothing more from others than benign neglect. The whole premise of the US Constitution is full recognition of negative rights: lawmakers are not empowered to hinder anyone's actions beyond a small and specific delegation of powers, much less compel others to facilitate someone's alleged positive right. The "create new rights based on their personal conceptions" you worry about are wholly positive rights, anathema to the Constitution and core American principles because they are based on compulsion of others to facilitate that new legislated/adjudicated "right". Rights, as understood in the Constitution, are nothing more than people doing what they see fit so long as others are not wronged in the process, and the legislative & judicial processes exist solely to identify & resolve these conflicts when they do arise.

vezzy-fnord 13y ago

Technically they wrote the Ninth Amendment for that, but it's very vague and there's no real consensus on its judicial interpretation.

alexeisadeski3 13y ago
The Ninth Amendment is bizarre.

pekk 13y ago

So what does this argument give you license to do?

ctdonath 13y ago
The point is that the government has not been empowered to monitor all electronic conversations, even when argued as "it's just everyone's metadata". Such monitoring is not natural common knowledge (of the "hey, anybody walking down the street could see you were talking to Joe" variety) and required an objective active threatening intrusion (of the "let us install a secret massive data tap in your communications hub, or we'll crush your business and throw you personally in jail" variety). The wording in the Constitution constituting a "right to privacy" was written by authors understandably ignorant of how incredible technologies centuries hence could/would be abused; had they foreseen such abuses, they would have tweaked the wording a small but critical amount to better specify granted powers and clarify the limitations thereon. To wit: if Jefferson, Hancock et al knew how extensive & pervasive surveillance would be, they'd have made sure the powers granted to government would NOT have included such wholesale monitoring, and would have clarified it with refinements to the 4th Amendment wording.

pstack 13y ago

Unfortunately, our education system does not teach us that the Constitution is a framework setting form constraints upon the government, but as a framework establishing and itemizing a list of freedoms citizens are allowed. So, we have an entire population that assumes if it is not enumerated in the Constitution, you do not have that right. For example "hey, the Constitution doesn't say privacy is a right". Well, no. It doesn't need to. You already have that right, without a piece of paper declaring it. Unfortunately, I'm afraid that this understanding of the Constitution has become so pervasive that it can not be changed, thereby completely reversing the entire intention of the founding fathers in constructing it. Thereby giving the government all the rights and citizens only the rights specifically declared in it (and, these days, not even that). It's kind of stomach-turning to see that reversal.

genwin 13y ago
I'd say half the population never question laws. If they even know the Constitution they still believe that every law is constitutional, and judges who strike down laws are "activist judges". This type of person would've jailed Rosa Parks and thought she was a bad person. Marijuana illegal? Then of course it should never be legal. Etc.
x0054 13y ago
Though this is slightly unrelated, today I tried to buy some Antibiotic eye droplets for my dog. It's not possible without a prescription. For a DOG! I love my dog, he is awesome. But legally, he is my property. I can kill him if I want to, sell him to a research center to be experimented on, or just let him go blind from the eye infection he picked up. But I can not buy meds for him without first taking him to an undereducated, glorified nurse (vet). So I had to go to a vet, pay $50 so he can poke my dog around with his finger, and then write me a prescription for the exact fucking drug I was trying to buy in the first place! The point is, like you mentioned, the constitution enumerates the Power of the federal government, not JUST the limitations on the said government! This means, if it's NOT in the constitution, then the government does NOT have that power, and I DO. The constitution says nothing about regulation of drugs, mass surveillance, or privacy. This means I HAVE those rights and the government has NO right to infringe my rights. Pretty soon I'll have to consult with a "licensed professional" to take a shit, and the NSA will have a camera at the bottom of my toilet, thus completing their constitutionally prescribed mission of crawling up the ass of every American, to make sure that no terrorists hide there, of course.