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Comment by RyanMcGreal | Hacker News Reader

What makes the American Constitution exceptional is not its content but the fact that it was written in the late 18th century. In the intervening two centuries, several other industrialized liberal democracies have adopted constitutions that are broader and more inclusive than the Bill of Rights.

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There are very few countries with as broad a constitutional protection for speech as the United States.

The problem now is that we have a government which has discovered effective work arounds for those protections. The government can pressure intermediaries who don't have the right incentives to vigorously defend their users by going to court, and then the actual targets of First Amendment violations never encounter a court proceeding in which to raise a constitutional defense, they just get cut off by the "private" service provider. The government can try to gag everyone involved so that, again, the people whose privacy or right to anonymous speech is invaded are never told and so they can't challenge the constitutionality of the invasion.

If any of this could be challenged in a public court proceeding there is a good chance the courts would find it unconstitutional. That's why they're twisting themselves into such contortions to make sure that never happens.

With "Parallel Construction", we see an explicit attempt to avoid Judicial Review, with the DEA mysteriously dropping charges whenever a case goes to court. Which is bad, as we've now trusted the constitution entirely to Judicial Review - congress has washed their hands of a responsibility to uphold it.

I suppose you could argue that the DEA knows it's unconstitutional and is willfully violating, and that raises even more troubling questions.

I also wish the constitutionality of FISC court itself could be challenged, as I think it clearly doesn't fall under article 3. But I have no idea how this would be done.

Some countries, like Germany, have Supreme Courts with more interventionist abilities, and more recourse against willful violations.

The English Civil war 1642–1651, and the pro-parliamentarians led by Cromwell, and the Glorious Revolution of 1688, and English Bill of Rights of 1689, using the ideas of Locke's Second treatise(same year), were most important for laying the foundations of the ideas of liberal democracy. Of course, the Magna Carta is also a precursor.

The only thing making the U.S. Constitution unique is that the U.S. was the first major country to be explicitly founded as a Republic, and the first country to overthrow a monarchy. The South American revolutions against Spain were pretty explicit copies of this example - Simon Bolivar, for example, loved Thomas Jefferson, and actually sent his nephew to the University of Virginia. (The Monroe Doctrine was originally about preventing re-colonization of the independent Republics. It's too bad the U.S. did so many evil deeds in the Cold War)

The two intellectual groups involved in the founding were the Democratic-Republicans, led by Jefferson, and the Federalists, led by Hamilton. The Federalists basically, more conservative and sought a close emulation of Britain, were slightly elitist and monarchist sympathizing, and of course, wanted a strong central government. They elitism eventually proved unpopular, but they kept a stronghold in the Supreme Court with John Marshall (the Jeffersonians opposed Judicial Review)

The Jeffersonians were more radical, favoring a weaker federal government and individual rights. Thus they were instrumental in the creation of the Bill of Rights. They tended to favor France and had more diplomatic connection with them. The most radical founding father, Tom Paine, went to France to help the revolution, and narrowly escaped execution in the reign of terror for being a "reactionary".

But clutter isn't what makes a legal document effective. I'd rather have a concise definition of what is a right and what not than pages upon pages of dancing around that issue.

The Canadian Charter of Rights and Freedoms is a little over 2,200 words and is clear and concise.

http://laws-lois.justice.gc.ca/eng/Const/page-15.html

The Bill of Rights, on the other hand, is so terse that debate rages continually about what a given statement actually means (see, e.g. the 2nd Amendment).

So there aren't any people trying to latch onto every nook in order to subvert the original message? That's...intresting.

I'm mostly familar with the American Bill of Rights and the German Grundgesetz, which is much longer and contains more rights, albeit not always more solid definitions. I've been in discussions before, where I'd defend one right, and was contered with another, equally valid right that was somehow conflicting with the other. In that way, the Grundgesetz trips over itself, and it's hard to argue for a given interpretation (so are these rights equal, or is this right of a lower denomination than the other, and how far can you compromise this right so this right can be put into effect, and if everyone has a Recht auf Arbeit (Right to have work), aren't we infringing on that?).

Obviously, I'd rather have a terse, but in itself noncontradicting bill of rights than a long list of irreconcilable demands. But they're both not neccesairily optimal.

Most liberal democracies don't have anything like First Amendment or Second Amendment (at the level of protections they provide) and the rights guaranteed to US people by those are routinely violated in other liberal democracies.

Most liberal democracies do have protections equivalent to the First Amendment. For example, here's the list of Fundamental Freedoms under the Canadian Charter of Rights and Freedoms:

> 2. Everyone has the following fundamental freedoms:

> (a) freedom of conscience and religion;

> (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

> (c) freedom of peaceful assembly; and

> (d) freedom of association.

You're right that most other countries don't have anything like the 2nd Amendment, but frankly I don't think the "right to bear arms" belongs in a constitution. It's an 18th century throwback to the discredited notion that the only thing stopping a government from tyranny is fear of uprising.

"freedom of the press" and freedom of speech are very different things. "Press" is regulated and licensed by the government and expression in the press is available to a select few. Speech is available to anybody.

Taking Canada as an example, doesn't Canada have Human Rights Council which prosecutes people for expressing opinions not condoned by the government?

In fact, Canadian Supreme Court considers limiting freedom of speech and defining what can and can not be spoken by the government completely justifiable: https://en.wikipedia.org/wiki/Canadian_Human_Rights_Commissi...

Existence of such laws and commissions proves that protection available to Canadian citizens in the realm of free speech is nowhere near what First Amendment provides.

If you need further evidence, check out this one:

http://overlawyered.com/2013/08/canada-man-ordered-pay-panha...

If you think country where such things happen has freedom of speech, your definition of freedom is very different than mine.

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