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Comment by ctdonath | Hacker News Reader

The Founding Fathers of the USA were concerned about writing a Bill Of Rights because any natural right not enumerated therein might be construed as not being a right at all. This is where we are with pervasive surveillance: being incapable of imagining/comprehending a surveillance system of this scale, it never dawned in them to protect anything more than "persons, papers and effects". At a time when just overhearing a conversation was hard enough to require concerted effort, they could not dream of a day when a significant percentage of every conversation among 300,000,000 people could be monitored and catalogued automatically at a not-prohibitive cost. Methinks: had they known, they would have not hesitated to prohibit it as explicitly as they did infringement of arms possession. Alas, the courts adhere only to the letter of the Constitution, not its spirit.

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Unfortunately, our education system does not teach us that the Constitution is a framework setting form constraints upon the government, but as a framework establishing and itemizing a list of freedoms citizens are allowed.

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.

Though this is slightly unrelated, today I tried to buy some Antibiotic eye droplets for my dog. It's not possible without a prescription. For a DOG! I love my dog, he is awesome. But legally, he is my property. I can kill him if I want to, sell him to a research center to be experimented on, or just let him go blind from the eye infection he picked up. But I can not buy meds for him without first taking him to an undereducated, glorified nurse (vet). So I had to go to a vet, pay $50 so he can poke my dog around with his finger, and then write me a prescription for the exact fucking drug I was trying to buy in the first place!

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.

The restriction on antibiotics is for the protection of everyone, it's not just to screw you out of $50.

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.

The overprescription of antibiotics is indeed a problem. But notice, it's still a problem, even though you can only get antibiotics with prescription. This is mostly due to the fact that many doctors, and most veterinarians I have ever had the displeasure of meeting are woefully incompetent. I am 30, and used antibiotics twice in my life, and needed it twice for my dog (because he has a genetic condition that effects his eyes). How about just educating people about the dangers of antibiotics, and letting them make up their own mind. The situation couldn't get any worse than it already is. Right now doctors give out steroids and antibiotics as if they were candy, especially in large hospitals. But now we are getting off topic, sorry for the rant, it was just a touchy subject today.

"How about just educating people about the dangers of [thing], and letting them make up their own mind."

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.

I don't think I've ever used antibiotics, but I'm concerned that in the next decade (when I'll be in my mid 40s), I will have a fairly major surgery that exposes me to a lot of potential infection. The idea of not having proper antibiotic solutions by that time (compounded by the notorious lack of protection from infection in hospitals) has be terrified.

Given that we've failed to educate doctors and nurses about the effects I don't like the odds of being able to educate everyone.

This was one of the arguments the Antifederalists made against the Bill of Rights, that it would eventually be construed as "itemizing a list of freedoms citizens are allowed."

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).

I'd say half the population never question laws. If they even know the Constitution they still believe that every law is constitutional, and judges who strike down laws are "activist judges". This type of person would've jailed Rosa Parks and thought she was a bad person. Marijuana illegal? Then of course it should never be legal. Etc.

It's perfectly consistent to think that non-enumerated rights should be protected by lawmakers without thinking that judges should enforce them. Remember, judicial review isn't even codified in the constitution. (If the framers had both considered and wanted judicial review, they obviously would ave written it in.) If we let judges infer non-enumerated rights, they could do anything. It's one thing to allow an unelected person interpret written word, but it's crazy to let the effectively create new rights based on their personal conceptions. Instead, the failure is with lawmakers.

> If we let judges infer non-enumerated rights, they could do anything.

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."

See my response to ctdonath.

If we let judges infer non-enumerated rights, they could do 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.

> 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.

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.

How do originalists regard digital privacy and speech protections?

I'm pretty sure that they do afford all rights and protections to digital messages as to written letters, is that correct?

It's not just the content, it's the metadata. Instant and total awareness of implied content thru comprehensive data mining goes far beyond what the Founding Fathers could imagine.

I know that it's not just the content.

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?

Technically they wrote the Ninth Amendment for that, but it's very vague and there's no real consensus on its judicial interpretation.

The Ninth Amendment is bizarre.

So what does this argument give you license to do?

The point is that the government has not been empowered to monitor all electronic conversations, even when argued as "it's just everyone's metadata". Such monitoring is not natural common knowledge (of the "hey, anybody walking down the street could see you were talking to Joe" variety) and required an objective active threatening intrusion (of the "let us install a secret massive data tap in your communications hub, or we'll crush your business and throw you personally in jail" variety). The wording in the Constitution constituting a "right to privacy" was written by authors understandably ignorant of how incredible technologies centuries hence could/would be abused; had they foreseen such abuses, they would have tweaked the wording a small but critical amount to better specify granted powers and clarify the limitations thereon.

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.

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