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Comment by dkulchenko | Hacker News Reader

> "Through four years of oversight, the committee has not identified a single case in which a government official engaged in willful effort to circumvent or violate the law."

I'm getting really tired of hearing this defense from U.S. officials. Just because something's legal doesn't mean it's constitutional and/or morally right. I don't think anyone's still arguing the legality of these programs - we're saying that they shouldn't be there because they violate the spirit (and arguably, the letter) of the 4th Amendment.

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This is one place where I feel your constitution holds you USA types back. Those rights had to exist before the constitution for it to be written, and even the constitution itself doesn't try to be a closed set. But it has largely been judicially interpreted as one. And it is entirely possible the NSA would pass constitutional muster, with this Supreme Court.

But it is possible for a thing to be legal - and constitutional - and in breach of rights which don't need to be named on any paper to still be rights. Like the right to privacy.

Indeed these rights were acknowledged before the constitution and Madison, along with some of the other framers, worried that a Bill Of Rights might create the negative pregnant[1][2] that we see being born out today. The largely ignored 9th amendment was a compromise between not having a bill of rights or somehow exhaustively enumerating all of them.

It's ignorance of history that holds us back.

[1] http://www.library.okstate.edu/constitution/previous.html#ad...

[2] http://en.wikipedia.org/wiki/Negative_pregnant

The ninth and tenth amendments have yet to see their full application. With 'strict constructionists' in the supreme court, it may occur sooner than later.

The enumeration of rights was practical. Without a concise list of important ones to point at, I think we would have been worse off.

Even if you agree that rights exist independently from any written record of those rights, there is still the fact that the public's concept of rights tends to change as culture changes. Despite the efforts of philosophers to connect rights to something more permanent than public opinion, the fact is that the key reason why we have rights is that we believe we have them. If we ceased to believe surely our rights would also go away.

In that sense, it is extremely helpful to have a document that attempts to make a permanent record of what are rights are and what we should expect from our government. The fact that such a document is (necessarily) incomplete does not make it any less valuable.

I think that's where constitutional "scholars" go wrong. The "rights" do not exist in the absence of a secular social contract.

What they mean is that there's no reasonable, fair social contract they can imagine that lacks those rights. It's perfectly possible for a social contract to lack certain "inalienable" rights, though. All you need is a pure, unconstrained democracy to see that.

Unfortunately, interpreting the Constitution as a living document and reading new rights (like the "right to privacy") into the Bill of Rights and/or the 14th Amendment -- "because of course the founders would ideologically agree with us that individuals have new rights A B and C" -- leaves the door open not only to good interpretations of rights, but bad interpretations of rights dictated by the majority against minorities, or dictated by powerful minorities against a disinterested majority.

The 9th amendment seems to me to protect rights not explicitly enumerated in the Constitution by the Constitution itself. It also gives judicial power of the courts to all cases arising under the Constitution (Article 3, Section 2). These seem to give the courts the responsibility to protect rights retained by the people that aren't explicitly enumerated by the Constitution. Of course, many people do what I see as Scalian mental contortions to arrive at a different conclusion.

There certainly have been cases where "rights" conflicted. One would be the "property rights" of slave owners (slaves being the property in question) vs. the innate rights of the slaves themselves. However, I see this problem of "bad rights" as having been solved by the 14th amendment. What bad interpretations of rights could you see that do not conflict with an existing amendment?

When a flexible, "living" interpretation is allowed, a religious majority could view civil liberties and rights through the lens of their religion, particularly when there is some connection (which they love to exaggerate) between their religion and the country's founding principles. Hypothetically speaking, of course.

Yeah, I think that that is prevented pretty clearly by the first amendment. And the 14th amendment wouldn't allow for granting one class of citizens rights over/at the expense of another.

As for the bigger picture, in my mind the debate over whether or not the Constitution is "living" is silly. Of course it is living. Unless you can send every case back to 1787 you'll never know what the founders intended. You interpret the meaning of what they wrote through the context of your modern life. Trying to use their writings of the time for context just exponentially increases the text that can be construed for any purpose, and you still end up reading the context through the context of modern life. And the founders almost certainly had different and unique interpretations of the constitution that they all voted for.

If a religious majority took over all three branches of government, then what can you do? The constitution won't save you. The constitution grants them the power to look at it through their own lens. No other lens is possible. The constitution is "living" then whether you want it to be or not.

> But it is possible for a thing to be legal - and constitutional - and in breach of rights which don't need to be named on any paper to still be rights. Like the right to privacy.

Well, much of our current conception of "right to privacy" was invented by the Supreme Court itself so it is true that the Constitution can be interpreted to mean different things as time goes by.

But as you point out, I don't see that happening with this Supreme Court. And to get such a right enshrined there would need to be a case to be brought to the Supreme Court in the first place.

> Well, much of our current conception of "right to privacy" was invented by the Supreme Court

The court doesn't invent rights. Rights are not listed, enumerated, ordered, or limited. It says so right in the part of the US federal constitution that was feared could be mistaken for a list of rights.

Yet we have from those enumerated rights strong protections that the rest of the first world does not have. There is a disincentive to conduct illegal searches, for instance, without a warrant or one of the cases where a warrant is not necessary: the evidence obtained in that search is generally suppressed. If the government wants to win their case, then they need to play by the rules. Britain, as one example, has no such protection.

Not to mention, these claims are uninvestigatable. They can say anything, and not only can we not investigate, but even if someone knew the truth and wanted to set the record straight, they would be considered a traitor and a criminal.

Sadly, the true brilliance of secret laws and classified programs is that they place incredible barriers in front of anyone attempting to prove they have standing to sue, making constitutional challenges difficult, at best.

“Assuming you don’t know exactly what the government did, how could you possibly have a lawsuit that provides any sort of relief and provides and effective remedy?” Samp asks, “How could the plaintiff know what remedy to ask for when he doesn’t even know what’s happened?” --Richard Samp of the Washington Legal Foundation

SOURCE: http://www.scotusblog.com/2012/10/suing-over-surveillance-se...

> One of Kafka's best-known works, it tells the story of a man arrested and prosecuted by a remote, inaccessible authority, with the nature of his crime revealed to neither him nor the reader.

http://en.wikipedia.org/wiki/The_Trial

As if I'd trust the NSA boss to tell the truth about this. Bring in a Church committee, and then we see.

The Church committee never went away. Whatever else you might claim about these NSA programs, the difference between now and then is that now the Senate was in the loop the whole way this time.

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