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Describing Obama: "the constitutional lawyer in the White House" The question that this brings to mind is whether Obama agrees with our constitution's precepts

by smoyer 12y ago

Describing Obama: "the constitutional lawyer in the White House" The question that this brings to mind is whether Obama agrees with our constitution's precepts. Wouldn't a constitutional lawyer be the perfect person to circumvent or destroy its intent? In much the same way a person that understands the internal workings of a lock is the best one to pick it?

throwawayaway 12y ago
In 2005 he did, but he's pretty duplicitous in retrospect: https://www.youtube.com/watch?v=5ylVOdriEyA https://www.youtube.com/watch?v=5ylVOdriEyA So he's no longer the perfect person to do so.
rayiner 12y ago
You can agree with the precepts of the Constitution and justify certain kinds of surveillance. Even if you think the NSA surveillance is unconstitutional, you have to concede that "privacy" is not a well-defined constitutional value. The framers spent many pages in the Federalist talking about the ins and outs of various voting systems, but never articulated a broader concept of privacy. The 4th amendment is based fundamentally on a "property rights" view: intended to keep the government from searching your property. A perfect example is the recent case in Jones. Is it unconstitutional because putting a GPS tracker in a car enables 24/7 surveillance, or because it requires the police to physically trespass on the car to place the tracker? The protection of "privacy" in the constitution has been extended to reach things birth control and abortion based on the "penumbras" of the rights that are actually in the text. This is fuzzy ground! You can believe that those penumbras exist yet still not believe they cover recording information people put out into the public internet. In short, its not so much that Obama is well-placed to know how to work around the Constitution, its that he knows that digital privacy is on unsure Constitutional footing in the first place and is positioned to take advantage of where the lines are drawn.
- alexeisadeski3 12y ago
  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
  - mpyne 12y ago
    Why does everyone simply quote the Fourth Amendment as if that answers the question about privacy, especially privacy as applied to electronic communications? Let me quote the Supreme Court decision establishing a right to privacy [1] (which was not previously considered present!): "Secondly, the Fourth Amendment cannot be translated into a general constitutional 'right to privacy.'" That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all." The decision goes further to note: "But the protection of a person's general right to privacy -- his right to be let alone by other people -- is, like the protection of his property and of his very life, left largely to the law of the individual States". In other words, one may have statute protection, but not blanket Constitutional protection. And that opens up the possibility of the ones writing the statutes carving out "foreign intelligence" exceptions. And this is all in accordance with the decision to invent the "reasonable expectation of privacy", it's not even going into later decisions like Smith v. Maryland which tended to expand government search ability. [1] http://www.law.cornell.edu/supremecourt/text/389/347 http://www.law.cornell.edu/supremecourt/text/389/347
    - alexeisadeski3 12y ago
      The Supreme Court has long ago abandoned any interest in protecting the rights defined by the Constitution.
  - rayiner 12y ago
    Key word: "their." The lynchpin or a lot of the surveillance efforts is accessing information that doesn't belong to the target of the surveillance. Phone call metadata is generated by the phone company, stored in the phone company's computers, and is used for the phone company's business purposes. Its the phone company's data, not yours. Same thing with the data Google and Facebook collect about where you go on the internet. You didn't generate it and you can't even access it. How can you say its "yours?" Its "about you" but that's totally different. If your neighbor keeps a diary tracking your comings and goings, you can't assert 4th amendment protection over that data. Privacy advocates talk about "metadata is data" as if the government's lawyers don't understand that bits are just bits. What privacy advocates don't understand is that the "metadata" distinction is about generation, ownership, and control, which are implicated in the 4th amendment by the word "their."
beerbajay 12y ago
> agrees with our constitution's precepts The problem is that not even the members of the Supreme Court can agree on what these are or how they should be interpreted. The everyday understanding of constitutional law is not the same as the legal understanding, which is part of the problem. The commerce clause, as read by any normal individual would not allow the Federal government to have anything to do with (e.g.) pot, but that is how it has been interpreted by the supreme court. No normal person would say that corporations are people, but according to the court they are. etc etc etc. Reading the constitution, I get a clear picture of a federation of independent states. But this idea died after the Civil War, if not before.
- rayiner 12y ago
  Commerce clause says that the federal government shall be able to regulate interstate commerce. Pot is something traded in intestate commerce. Its not as ridiculous as you make it seem. The framers might have used narrower language if they could foresee that one day, everything would be a part of interstate commerce. That certainly wasn't true during the time of the framing, when goods were produced locally or even primarily by the individuals using them on family farms. But they used broad language with the intent of giving the federal government the power to regulate large scale commerce as it existed then. The Supreme Court didn't say that corporations are people. It said that people don't lose their first amendment rights because they assemble themselves into a corporation. Falls naturally out of the first amendments rights to free speech and assembly. You can't ignore the civil war. The 13, 14, and 15 amendments were a renegotiation of the Constitution at the point of a sword. The idea of a federation of independent states is called into doubt by the supremacy clause and commerce clause, which was in the original, and the 14 amendment, which allows Congress to legislate directly against the states to enforce the amendment. Moreover, looking at original intent, the federalist faction of framers wanted a strong central government. They didn't give states autonomy because they wanted to, they did it because they had to, and they set the stage for states becoming secondary powers.
  - beerbajay 12y ago
    > Pot is something traded in intestate commerce Sorry, I should have specified that I meant "grown for private consumption". Obviously if it crosses state borders it fits with what the commerce clause was designed to regulate.

by smoyer 12y ago

throwawayaway 12y ago

In 2005 he did, but he's pretty duplicitous in retrospect: https://www.youtube.com/watch?v=5ylVOdriEyA https://www.youtube.com/watch?v=5ylVOdriEyA So he's no longer the perfect person to do so.

rayiner 12y ago

You can agree with the precepts of the Constitution and justify certain kinds of surveillance. Even if you think the NSA surveillance is unconstitutional, you have to concede that "privacy" is not a well-defined constitutional value. The framers spent many pages in the Federalist talking about the ins and outs of various voting systems, but never articulated a broader concept of privacy. The 4th amendment is based fundamentally on a "property rights" view: intended to keep the government from searching your property. A perfect example is the recent case in Jones. Is it unconstitutional because putting a GPS tracker in a car enables 24/7 surveillance, or because it requires the police to physically trespass on the car to place the tracker? The protection of "privacy" in the constitution has been extended to reach things birth control and abortion based on the "penumbras" of the rights that are actually in the text. This is fuzzy ground! You can believe that those penumbras exist yet still not believe they cover recording information people put out into the public internet. In short, its not so much that Obama is well-placed to know how to work around the Constitution, its that he knows that digital privacy is on unsure Constitutional footing in the first place and is positioned to take advantage of where the lines are drawn.

alexeisadeski3 12y ago
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
- mpyne 12y ago
  Why does everyone simply quote the Fourth Amendment as if that answers the question about privacy, especially privacy as applied to electronic communications? Let me quote the Supreme Court decision establishing a right to privacy [1] (which was not previously considered present!): "Secondly, the Fourth Amendment cannot be translated into a general constitutional 'right to privacy.'" That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all." The decision goes further to note: "But the protection of a person's general right to privacy -- his right to be let alone by other people -- is, like the protection of his property and of his very life, left largely to the law of the individual States". In other words, one may have statute protection, but not blanket Constitutional protection. And that opens up the possibility of the ones writing the statutes carving out "foreign intelligence" exceptions. And this is all in accordance with the decision to invent the "reasonable expectation of privacy", it's not even going into later decisions like Smith v. Maryland which tended to expand government search ability. [1] http://www.law.cornell.edu/supremecourt/text/389/347 http://www.law.cornell.edu/supremecourt/text/389/347
  - alexeisadeski3 12y ago
    The Supreme Court has long ago abandoned any interest in protecting the rights defined by the Constitution.
- rayiner 12y ago
  Key word: "their." The lynchpin or a lot of the surveillance efforts is accessing information that doesn't belong to the target of the surveillance. Phone call metadata is generated by the phone company, stored in the phone company's computers, and is used for the phone company's business purposes. Its the phone company's data, not yours. Same thing with the data Google and Facebook collect about where you go on the internet. You didn't generate it and you can't even access it. How can you say its "yours?" Its "about you" but that's totally different. If your neighbor keeps a diary tracking your comings and goings, you can't assert 4th amendment protection over that data. Privacy advocates talk about "metadata is data" as if the government's lawyers don't understand that bits are just bits. What privacy advocates don't understand is that the "metadata" distinction is about generation, ownership, and control, which are implicated in the 4th amendment by the word "their."

beerbajay 12y ago

> agrees with our constitution's precepts The problem is that not even the members of the Supreme Court can agree on what these are or how they should be interpreted. The everyday understanding of constitutional law is not the same as the legal understanding, which is part of the problem. The commerce clause, as read by any normal individual would not allow the Federal government to have anything to do with (e.g.) pot, but that is how it has been interpreted by the supreme court. No normal person would say that corporations are people, but according to the court they are. etc etc etc. Reading the constitution, I get a clear picture of a federation of independent states. But this idea died after the Civil War, if not before.

rayiner 12y ago
Commerce clause says that the federal government shall be able to regulate interstate commerce. Pot is something traded in intestate commerce. Its not as ridiculous as you make it seem. The framers might have used narrower language if they could foresee that one day, everything would be a part of interstate commerce. That certainly wasn't true during the time of the framing, when goods were produced locally or even primarily by the individuals using them on family farms. But they used broad language with the intent of giving the federal government the power to regulate large scale commerce as it existed then. The Supreme Court didn't say that corporations are people. It said that people don't lose their first amendment rights because they assemble themselves into a corporation. Falls naturally out of the first amendments rights to free speech and assembly. You can't ignore the civil war. The 13, 14, and 15 amendments were a renegotiation of the Constitution at the point of a sword. The idea of a federation of independent states is called into doubt by the supremacy clause and commerce clause, which was in the original, and the 14 amendment, which allows Congress to legislate directly against the states to enforce the amendment. Moreover, looking at original intent, the federalist faction of framers wanted a strong central government. They didn't give states autonomy because they wanted to, they did it because they had to, and they set the stage for states becoming secondary powers.
- beerbajay 12y ago
  > Pot is something traded in intestate commerce Sorry, I should have specified that I meant "grown for private consumption". Obviously if it crosses state borders it fits with what the commerce clause was designed to regulate.