It's weird how often discussions about amendments get caught up on wording, precedents and people's intentions rather than what is good or bad. It's as if the founding fathers figured it all out and wrote it all down back in the day, and with only the right interpretation everything will be perfect. Sounds a lot like religion.
Debates about Constitutionality become legalistic because the Constitution is a legal document. It's basically a contract that represents the last time Americans ever managed to (kinda) agree on anything.
You also have to keep in mind that debates about Constitutionality arise over politically unpopular topics. It's a way for people with minority viewpoints to say: "well, whether you think this is good or bad, it is inconsistent with this larger scheme we all agreed to."
If you held a vote and asked people whether they thought people accused of terrorism, especially abroad, should have rights, you'd lose. I remember in college being the lone dissenting voice in a discussion of the merits of turning the entire Middle East into a glass parking lot. Ordinary Americans believe very deeply in the sovereign right of the American government to kill foreigners who do anything contrary to American interests.
Hence the resort to legalism. You can't convince Americans that it's good for suspected terrorists to be given trials, etc, so the best you can hope to do is convince them that they, collectively, bargained away the ability to hold suspected terrorists without trial.
There are two problems with this analysis. The first is that the Constitution is not a "contract" with which Americans "collectively bargained away" anything, because modern Americans were not alive at the alleged time of bargaining away things, and being alive is a prerequisite for making a contract. To believe in constitutionalism is essentially to not believe in governance by the consent of the governed.
The other problem is that even if it was a contract, we seem to ignore it, because we pass the laws described in the article. So it's not a very effective system.
I'm using "contract" in a somewhat figurative sense here. Obviously the Constitution isn't an ordinary contract, but it has many of the characteristics of one. Also, I think it's a modern conceit that one cannot be bound by obligations agreed to before one was born. Society and government are continuous, and we "consent" to the governing rules by being born and choosing to remain a part of a particular society governed by a particular government.
As for the laws described in the article--they are not the product of Congress "ignoring the Constitution." The appearance of "ignoring the Constitution" is itself the product of certain civil libertarians believing the Constitution says more than it does, or focusing on what they wished the Constitution said rather than what it does say.
It's called "the rule of law". It's a concept that came as a reaction against a ruler make decisions based on his own opinion of what is right and wrong.
Yes, there is a place for a discussion of ethics outside of the current legal framework, and if the Constitution is found to be lacking in that area, then it should be amended. Until that happens, our government is legally bound to abide by the Constitution as it is written, and to judge whether or not that is happening, the document must be interpreted. One important aspect to interpretation of a document is to understand the circumstances under which it was written. To do that with a 200+ year old document requires a little knowledge of history.
The framers of the Constitution did not achieve perfection, but at least the idea of the "rule of law" does give us a relatively consistent and stable society in which to live. The disadvantage is that written law is static and cannot quickly adjust to changing circumstances. Ideally, we would have an enlightened leader who knew the right thing to do in every circumstance, and would govern with perfect justice. If we could be assured of that kind of government, we wouldn't need to worry about interpreting documents.
What're we in court here? Does pg come in at the end and bring up the highest-voted comments at his next illuminati meeting? The original article lists lots of pretty bad things. The fifth amendment is relevant to the extent that it should be improved to prevent those bad things. I don't think the word of the law is the biggest problem here.
So I don't have a problem with drone strikes. I think they're cheaper and safer than the only practical alternative, which is sending special forces abroad. I also don't think non-Americans outside American soil have rights under our Constitution, because they're not members of our society. I also don't have a problem with monitoring of internet communications so long as its done by computers with security protocols to prevent misuse of the information, and robust court supervision of the use of the resulting evidence. I think my views are actually representative of typical Americans. So where does that leave us? You think those things on that list are "bad things" and I think they're "better than the alternatives."
This is why discussions turn legalistic, because people dissagree about what's good and what's bad, so they instead fight over what is legal and what is illegal.
Yes, it is amazing how quickly some Americans shift from a discussion on whether it is justified to recognise the rights of non Americans to whether it is justified to not murder them.
> I also don't have a problem with monitoring of internet communications so long as its done by computers with security protocols to prevent misuse of the information, and robust court supervision of the use of the resulting evidence.
"Security protocols" to prevent misuse, huh? Why would you think they'd be concerned with something like that?
What do you think is the idea behind NSA's massive spy center in Utah? "Hey guys, let's capture all traffic on the Internet, and then make damn sure we'll never do anything with it that might compromise someone's privacy, ever!"
> robust court supervision of the use of the resulting evidence
As robust as the supervision on mortgages in the past few years, perhaps?
Case in point: With all those hundreds of thousands of mortgages the bank bought, it simply stopped filing basic paperwork – even the stuff required by law, like keeping chains of title. A blizzard of subsequent lawsuits from pissed-off localities reveals that the bank used this systematic scam to avoid paying local fees. Last year, a single county – Dallas County in Texas – sued Bank of America for ducking fees since 1997. "Our research shows it could be more than $100 million," Craig Watkins, the county's district attorney, told reporters. Think of that next time your county leaves a road unpaved, or is forced to raise property taxes to keep the schools open.
But the lack of paperwork also presented a problem for the bank: When it needed to foreclose on someone, it had no evidence to take to court. So Bank of America unleashed a practice called robo-signing, which essentially involved drawing up fake documents for court procedures. Two years ago, a Bank of America robo-signer named Renee Hertzler gave a deposition in which she admitted not only to creating as many as 8,000 legal affidavits a month, but also to signing documents with a fake title.
No, it's not called the rule of law. It's called reading your personal ideology into a 300-year old constitution because you're too cowardly to actually come out and pass laws or - Heaven forbid O noble Americans! - amend the Constitution to line up with modern times.
>It's weird how often discussions about amendments get caught up on wording, precedents and people's intentions rather than what is good or bad.
That's only natural. You have to determine what the amendment really means before you can decide whether or not it's a good idea.
Madison didn't want to include a bill of rights at all. He viewed the US Constitution as a document enumerating what the federal government can do, which is the most restrictive interpretation, and thus things like prohibitions on speech were obviously outside the powers of the federal government.
He felt that by including the Bill of Rights the meaning of the entire document was changed and people would argue it allows the government to do anything that isn't prohibited.
