Separation of powers has effectively failed due to the Supreme Court's supreme reliance on precedent, or stare decisis. One bad decision, unless explicitly overturned, has ripple effects on every decision that follows it. Because of SCOTUS' strict adherence to precedent, and their relative unwillingness to overturn bad law except where they absolutely, positively have to, we have a ton of bad precedent on the books, and everybody pussyfoots around them, which leaves more and more resultant bad decisions in their wake.
The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. After the Heller decision, that debate has shifted over to whether or not a given piece of legislation is "reasonable", as the Heller decision declared legislation must be. This of course ignores the text of the Constitution, that Congress shall make no law, but because they have made laws, and some of those laws have been upheld by bad precedent, we have a circular logic in place. Congress shall make no law, but the last law that was made was upheld, so no laws can be made, so long as they are reasonable. Further, SCOTUS has thus far passed on newer, more updated challenges in the wake of Heller.
They've made the same side-steps on gay marriage. A favorable decision has been reached, but there's no teeth in place to prevent states from re-interpreting the decision however they like, and everything moves so slowly that political parties can reap the rewards from both the passage of a bad law, and its repeal. The democrats passed DOMA, to great acclaim. The democrats claimed success when DOMA was overturned, to great acclaim. The Constitution's purpose is to prevent legislation from catering to the whims of the people, and it is clearly not doing a great job there.
It's hard to imagine that any originalist text or intent would condone today's perennial slaughter of the fourth amendment, but on it goes. People stake their claims on individual words in the clause, while ignoring the text on the whole. This is done on purpose, because there is no penalty for violating the Constitution, and because even if we were to attempt to hold those accountable to the text, it's so easy to say "Well, I read it differently."
The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. But we elect those who are, for better or worse, the most likely to be able to twist its words into meaning whatever we want, and we either can't, or don't hold them accountable for anything above and beyond the next election cycle.
Sorry for the rant.
The text of the Second Amendment isn't "Congress shall make no law". It's that "the right ... shall not be infringed." The "shall make no law" bit refers to the First Amendment.
This seems to be relevant for the rest of your thing about how bad laws were made...
> It's hard to imagine that any originalist text or intent would condone
You seem to be saying this as if originalism is the absolute correct jurisprudential theory with which to interpret the Constitution, but to put it mildly, that's debatable.
> The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers.
It's subject to interpretation by the rest of us, too. Which is why it annoys the hell out of me every time someone talks about how they wish people would just use plain English instead.
> There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable.
This isn't correct. Lawyerese is used because the phrases have established precedent. It's not un-interpretable; it's already-was-interpreted and you're going to have to overturn precedent in order to get it interpreted differently.
You're absolutely right on the Second, and I know that well myself... I think I'd started saying something about the first and fourth and gotten mixed up. It was indeed a rookie mistake, and I appreciate your correction.
As for the originalist interpretation of the Constitution, I know that it's been debated, but I've never subscribed to the arguments that an originalist reading is bad. If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option.
That isn't to suggest that I think it's perfect. I think that it should have been, and should be ratified far more than it has been. I think that there's plenty wrong with it, but just acting like it doesn't exist shouldn't be an option either, and that seems to be the trend.
The last thing I'll say on originalism though is that the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc., to adhere to originalist intent. As such, I think it's fair to say that an originalist interpretation is the gold standard, and we're falling far short of that mark.
In keeping with that though, I believe the founders foresaw its shortcomings, and also expected more ratification.
I don't disagree with your assessment on plain English, but I do wish that there was less ambiguity.
> If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option.
But this is true of all jurisprudential theories, not only of originalism. That's why people campaign to get bills passed, but merely sit around and cross their fingers when court decisions are made.
> the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc. to adhere to originalist intent.
This is completely untrue: you're making up requirements in order to support originalism. It's like saying that houses are supposed to be tall and dot the landscape, and therefore should always be built aboveground. Originalism is an interpretative tradition like any other interpretative tradition. It doesn't have a special place. You can favor it, but that's a personal inclination, and not actually justified.
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.... (Posner is one of judiciary voices calling for IP reform.)
http://www.constitution.org/cons/prin_cons.htm (Especially #17)
As for my statement on originalism, I don't believe it untrue, but I do believe it was poorly stated. The two basic schools of thought express the judiciary requirement to either pay heed to original intent or original meaning, with perhaps strict constructionism coloring either side of the equation.
Regardless, I think that my intent remains true, which is that politicians too often disregard both the original meaning, the original intent, or any strict or loose construction of the Constitution in order to bend the Constitution, through verbal gymnastics, into abstractly supporting whatever thing it is that they want supported.
In short, it is simply disregarded, and if a Constitutional challenge is posed, it is easily circumvented by hand-waving and word play. This, despite the primary job of the federal government (IMO at least) is to uphold the Constitution, and every member of the legislature, executive and judiciary having sworn an oath to uphold it.