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."
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."
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]
> 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).
>The fact that the actions are "invasive" doesn't mean they're unconstitutional.
Perhaps, though that only reinforces Spooner's point. Given the repeated attempts to frame this as only an issue of explicit prohibition, I think that perhaps you're trying to counter an argument I'm not actually making.
Anyone who tries to make a claim of "unconstitutionality" -- or argue against someone making a claim of "constitutionality" -- is wasting their time. The Constitution means precisely whatever the people can be convinced it means, and that in turn is decided largely by a handful of individuals in power. If something as explicit as the Seventh Amendment's "twenty dollars" clause can be argued away, then anything can.
Sometimes, as is (slightly, temporarily) the case now, the people may find an act of the state egregiously wrong, and look for protection in the Constitution. Thankfully we have people like you to remind them that they are incorrect. From this the value of the Constitution is revealed: the imprimatur of legitimacy it provides to those in power when they commit otherwise illegitimate acts.
> Anyone who tries to make a claim of "unconstitutionality" -- or argue against someone making a claim of "constitutionality" -- is wasting their time. The Constitution means precisely whatever the people can be convinced it means
Seems to be a very good reason why persuasion based around "constitutionality" is not a waste of time.
> and that in turn is decided largely by a handful of individuals in power.
Well, no, its decided by what the people accept, which depends pretty much entirely on the arguments they are exposed to. Certain individuals in power in government and the media have some advantages in terms of inherent trust with some segment of the population on the issue, or just a bigger microphone, but those can be overcome. Even in states where the means of mass communication have been far more tightly controlled than they are in the US, "what the people can be convinced of" has often conflicted with what those in power want; preaching defeatism of the kind you are here is precisely the thing that serves to reinforce the power of the elites, which mostly comes from other people giving up.
>Seems to be a very good reason why persuasion based around "constitutionality" is not a waste of time.
Perhaps, but it's not a very good reason to engage in an argument with someone making positive claims about "constitutionality" (e.g., rayiner).
Personally, I'm disinclined to participate in a lie merely in the hopes of yielding a favorable outcome, particularly when doing so cedes the fundamental point of my position. I am content to simply note the lie.
I enjoy how your response is not to engage with any of Rayiner's actual arguments and instead try to turn it into a character issue. If you look at the history of American law you'll find that historical scope of the 4th amendment and similar was always a lot narrower than most people today conceive it to be.
In a broader context, it's particularly instructive to look at the history of Shays' Rebellion, which took place a mere decade after the founding of the US; the people running the government at the time, including founders such as John and Samuel Adams had no hesitation on dropping the banhammer on the rebels, to the point of suspending habeas corpus.
The Constitution was most certainly not written with the intention of producing weak government. Like it or not, it invests the federal government with far-reaching powers, and such limits as it does put in place are partly to limit the Federal government's authority over the states, as opposed to individuals.
The U.S. is awesome. I bet there is literally a handful of countries your average HN-er would rather live in than the U.S., and before the economic liberalization of Europe in the 1990's, it was probably less than that. Our prosperity has been supported by an incredibly stable government, one that is, 224 years after its founding, freer than it ever has been (read up on the Alien and Sedition Acts).
It's easy to take what we have for granted, but it's important to maintain perspective. The cause of the republic is not served by those who declare it hopelessly broken and disengage. In the light of historical perspective, you realize that there have been many times in the past when the government was more corrupt than it is now, when society was less free than it is now, and that's a liberating thought because it means that the trend of government does not point inevitably towards corruption and repression.
As a European, I'm pretty impressed by it and the rest of the US legal system, notwithstanding its numerous faults. The US has been through a lot worse than this efore, and emerged better as a society; the NSA processing data in bulk in nothing compared to, say, McCarthyism and the Red Scare.
>I enjoy how your response is not to engage with any of Rayiner's actual arguments
True, though in precisely the same way his response was not to engage with any of Spooner's actual arguments. I am perfectly willing to yield every one of rayiner's positive claims; they only provide more fodder for the rejection of state legitimacy on normative grounds.
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!"
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.
"[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