Obama and the N.S.A.: Why He Can't Be Trusted
newyorker.com
newyorker.com
I'm pretty sure that they do afford all rights and protections to digital messages as to written letters, is that correct?
Originalists don't require that the 'Founding Fathers' have known the future: Originalists allow assault rifles to be protected under the 2nd. They allow, presumably, emails and internet newspapers to have full 1st protections.
Thus my question is... have any originalists weighed in on this particular subject?
You are conflating rights with entitlements. The nature of non-enumerated rights is clear: Everything that is outside the enumerated powers of government, until the people decide to add to those powers through the amendment process.
We are safe from judges doing "anything."
No, they can't. A parallel argument against writing the Bill Of Rights was that it was completely redundant: every enumerated right was already protected by the limited granting of powers to the government. Remember, the US government starts as nothing and is granted highly restricted powers (not the imposition of limits on an otherwise unlimited government, as most seem to think). There are plenty of other rights, regardless of enumeration, which likewise the government is not authorized to limit.
The problem is there's an overlooked difference between positive rights vs negative rights. Positive rights, enacted by legislation, require others to facilitate one's actions. Negative rights, requiring no legislation save for active protection thereof, require nothing more from others than benign neglect. The whole premise of the US Constitution is full recognition of negative rights: lawmakers are not empowered to hinder anyone's actions beyond a small and specific delegation of powers, much less compel others to facilitate someone's alleged positive right.
The "create new rights based on their personal conceptions" you worry about are wholly positive rights, anathema to the Constitution and core American principles because they are based on compulsion of others to facilitate that new legislated/adjudicated "right". Rights, as understood in the Constitution, are nothing more than people doing what they see fit so long as others are not wronged in the process, and the legislative & judicial processes exist solely to identify & resolve these conflicts when they do arise.
This argument is a no-go. There are plenty of places where the government infringes on individual rights while pursuing legitimate government ends using otherwise reasonable powers. Restricting the ends and powers is not enough, unless you beg the question by defining the powers to not infringe on individual rights.
I'm well aware of the difference between positive and negative rights, and that distinction does nothing here (nor is it so easy to define, in practice). Judges might hold that there are rights to privacy, rights to family, rights to tradition, and a million other things. Thoughtful people have disagreed on these things since before the US existed.
> and the legislative & judicial processes exist solely to identify & resolve these conflicts when they do arise.
Vague to the point of being useless.
To wit: if Jefferson, Hancock et al knew how extensive & pervasive surveillance would be, they'd have made sure the powers granted to government would NOT have included such wholesale monitoring, and would have clarified it with refinements to the 4th Amendment wording.
So, we have an entire population that assumes if it is not enumerated in the Constitution, you do not have that right. For example "hey, the Constitution doesn't say privacy is a right". Well, no. It doesn't need to. You already have that right, without a piece of paper declaring it.
Unfortunately, I'm afraid that this understanding of the Constitution has become so pervasive that it can not be changed, thereby completely reversing the entire intention of the founding fathers in constructing it. Thereby giving the government all the rights and citizens only the rights specifically declared in it (and, these days, not even that).
It's kind of stomach-turning to see that reversal.
The point is, like you mentioned, the constitution enumerates the Power of the federal government, not JUST the limitations on the said government! This means, if it's NOT in the constitution, then the government does NOT have that power, and I DO. The constitution says nothing about regulation of drugs, mass surveillance, or privacy. This means I HAVE those rights and the government has NO right to infringe my rights. Pretty soon I'll have to consult with a "licensed professional" to take a shit, and the NSA will have a camera at the bottom of my toilet, thus completing their constitutionally prescribed mission of crawling up the ass of every American, to make sure that no terrorists hide there, of course.
If people are allowed to throw antibiotics at any problem they think might be cured with them, then they eventually lose their effectiveness (as is becoming the case already). It doesn't matter that they were for your dog either, the same antibiotics are often used to treat human and animals, so misuse in one group can still cause problems for the other.
Most of us are stupid, not by birth but by training and experience. It's not our fault. Most of us don't do anything for a living that requires us to be more than stupid.
Staking your future and safety on the actual abilities of the actual population is pretty damn risky, I think.
The flip side is that I find it hard to imagine history not eventually resulting in the transmutation of a limited central government into an all powerful one, following the strong tendency of republics turning into empires, as ours has in form. I think the Swiss have avoided this, but I don't follow them closely; I'm not aware of any other counterexamples.
On the other hand our political system is still a lot better than many others, including the Westminster parliamentary one we deliberately rejected unlike almost all others. We can look at the Right to Keep and Bear Arms, a natural right acknowledged in the Bill of Rights, for a good historical example. It was judicially nullified or outright ignored for all the nation's history until 2008, and on the ground that's still essentially true outside of the Federal courts that cover Illinois. It was the political process that brought us back from the brink (and there's enough political power outside of Chicago and its closest suburbs that Illinois is also partly a example of the latter).
But he isn't. He even got the peace noble price just for his announcements. Nothing more. Still his announcement is there, that he will close Guantanamo. It is announced but nothing done. He is the savior of announcements.
Also people thought, that he would finish up with the bad ruling of his predecessor. But even the known cases of torture in Iraq did not have any consequences (besides those of letting some stupid low level soldiers be the escape goats). One of the first doings of Obama was a big amnesty for any wrongdoings of intelligence people. That already showed a foreshadow what we could expect of Obama.
I guess, either Obama is a Wolfe in savior-skin, or he is a sheep in a wolfs-skin and so much under pressure from some side, that he has to obey and shut up, no matter what he really wanted in the first place ...
I also guess, that we should internalize the thought, that the really mighty in this world are not on the cover pages of the newspapers and those on the cover pages are less mighty as we shall think.
This is the correct answer. The presidency is now almost entirely a figure head, a proxy for the people that really control the actions of the United States.
Obama's policies were relatively unimportant - he was the lesser of two evils, where the greater evil was pretty much the anointed successor of Satan from the point of view of large parts of the world (his policies didn't matter either; he could've been replaced by Mother Theresa and the taint of association with Bush would still have been there). That's how badly Bush alienated even huge numbers of people internationally who have traditionally been very right wing and very pro-US.
Consider that e.g. Clinton was very well liked internationally, yet he got nothing like the reception Obama got.
Obama's election was the first and only time where I heard of tons of non-Americans going to parties celebrating the US election. There was a very real sense of elation, especially given the kick in the face and disappointment and total and utter disbelief the Bush re-election created last time around.
Does any of that matter? The only reason they thought he was better than Bush was because he made promises that sounded good, but he didn't actually keep them. That's the issue here.
Zaphod Beeblebrox was amazingly good at his job.
I think ex-Brigadier General Janis Karpinski would beg to differ, per Wikipedia she "was reprimanded for dereliction of duty and demoted to the rank of Colonel on May 5, 2005", which of course also ended her Army career that year.
I would argue there's almost as much gross overstatement of how bad G. W. Bush was as there is overstatement of how good Obama is. Certainly a lot of people are coming to that conclusion, perhaps in part as we see so many examples of things that were bad when Bush did them that are somehow good when done by Obama. Bush's biggest crimes were beating Gore and therefore ending the Clinton era, and of course Governing While Republican.
Might be, but: 1) She did not get into prison and Colonel is not so much of a demotion ... (of course I do not know, what her part was in all this exactly and how much guilt she carries herself, so the demotion might be harsh) You can might also see it not as demotion for tortures that happened, but a demotion, because it got into the open.
2) Also a Brigadier General was not the root of the problem. Just another escape goat ... a higher one, but not really high one. In my opinion, much of the administration in between and the minister of defense is at least also to blame. Also to my knowledge, no one of the agencies that where largely responsible for many acts of torture (more responsible in my opinion than many soldiers) did not get any kind of punishment.
This is a shame for the whole western world! From this moments on, we can not raise our heads or arise our voices against so called rogue-states or regimes ... because we act the same! Bending basic laws of humanity to our liking! SHAME!
I and many others simply don't buy that premise in our modern no shame culture.
It never occurs to them that when you give a president some obscene unchecked powers (and especially when you have a legislative branch that abandons their responsibility to be a check and balance and becomes a bunch of bi-partisan yes-men, you are giving that power to every president that comes afterward. Including the next Nixon. Which I guess is what we have today, when you think about it.
We like to blame "the government", but I'd blame most of our current situation on an entire population that we have failed to educate on civics and how government works. They don't even know the basics and they give up or dismiss so much, because they don't know better.
The problem that you describe can be better called: The people don't resist enough, that the system is taking the power and changing the rules so freedom is vanishing.
I see it in my country: Before election day it was clearly visible that the government is selling our freedom for good contacts to the US and they turned a blind eye to anything the US did. It was totally visible to all. But they where reelected even with a surplus. So most people just did not care enough. Some extra money or personal benefits where more important than democracy or freedom.
I am sure, that this notion in the western countries will retaliate heavily on us. I really fear, that now all the nightmares of Orwell and others could come true and humanity will sink into hell of its own devise.
Not just "think"; my political awareness begins with Nixon's first term, and Obama "feels" a lot like him, certainly a lot more than any following president. Check around, many other of us older types have noticed this.
Just look at the analogous IRS situations, only in Nixon's days they mostly ignored his requests.
The end result being a host of very convincing cultural assumptions that are hard to argue with if you're on the inside and driving the wheel.