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Comment by jfengel | Hacker News Reader

Inventing categories is what the court does. The Constitution is incredibly brief, and gives zero guidance on how to clarify conflicts. It has always been full of "common sense" exceptions, like criminalizing threats (despite the unqualified "freedom of speech" language) or probable cause (police can invade your house if they know you are committing a crime right now).

The sum total of these "common sense" exceptions, and the "legal reasoning" that extends them to the modern world, means that the document itself doesn't actually mean anything. Your rights, such as they are, consist of literally millions of pages of decisions, plus the oral tradition passed down in law schools.

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The constitution doesn't provide a "common sense" loophole. Much of it is written in absolutist language because that was the actual intention. The amendment process is provided to open "common sense" loopholes if everyone agrees they are common sense, not for the courts to gradually erode the language until the federal goverment is doing things the founders explicitly fought the revolutionary war over.

Put another way, Writs of Assistance, were perfectly legal common sense way for the British government to assure their customs laws were being enforced, and it was one of the more significant drivers of the revolution.

The passage of the alien and sedition acts without constitutional amendment disproves that idea.

At first glance that seems to be true, but when you look at the arguments at the time, who made them and how much of it was walked back, it just looks like the usual legislative panic, same as 911. It doesn't make the original intentions wrong, anymore than what happens when you release open source software and it takes on a life of its own under new maintainers. The failure to understand the long term reprocusion of basically ignoring the actual language of the original document puts one in a place where literally nothing matters except what you can ram through congress and get supreme court approval over during a time of panic or before the other side takes over again.

Thats not a constitutional democracy, thats just anarchy and rule by whoever can buy the most seats.

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