Comment by bhauer | Hacker News Reader

Comment by bhauer | Hacker News Reader

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> They think they can legislate anything they want

For Americans at least, that mentality has evolved over time as we further distance ourselves from the Constitution and its Amendments; trying our best to ignore their very clear limits on the capabilities of each branch of government. In today's American society, a diverse (and often mutually disagreeing) set of groups see the limits set in the Constitution as quaint and outdated, too inflexible for the modern world. Some see the Fourth Amendment as unreasonably limiting the effectiveness of national security and law enforcement. Some see the Second Amendment as a relic of a more violent world. Some see the First Amendment as intolerant of intolerance. Some see the Ninth and Tenth Amendments as needlessly frustrating the federal government's ability to quickly "fix" problems.

Today, I find the Constitution—and more importantly, those who bring it up in polite political conversation—to as often as not be marginalized as "extreme" or, worse, comedic. There is a rough equivalence of "Constitution" with "Murica" (or similar slang insults depending on the point of view of the person who sees the Constitution as an irksome trump-card used to roadblock their agenda).

As someone who believes the Constitution was a work of genius that facilitated this country's ascent, I also feel that for all our modern failings, the Constitution is one of the remaining bulwarks helping keep us afloat. I am sad when I see it attacked so successfully and relentlessly by myriad disagreeing groups. Those who seek facile, overreaching, and quick government solutions to complex problems routinely want to ignore the limitations set by the Constitution, not realizing that deliberation and careful thought were and should remain a cornerstone of our governmental model.

Sorry, but I think you're being historically obtuse.

This isn't anything new at all. The entire core debate of federalism versus anti-federalism (or to put it in perspective of historical figures, the Alexander Hamilton way against the Thomas Jefferson way) has been something going on since before the country was even conceived, and it goes on to this date.

Your portrayal of constitutional originalism being some gold standard from the "good ol' days" that we have since fallen out of grace from, is thus, completely ahistorical.

Disagreement with the Constitution is certainly not new and I am not describing an increase in disagreement with the Constitution. I am describing a diminishing significance of the term "unconstitutional" as a counterargument to agendas that (strictly speaking) are in fact unconstitutional. In the country's earlier history, the constitutionality of laws was considered a more important factor to predicate their existence. If an argument were made that a law would be unconstitutional, that presented at the very least a significant hurdle to clear.

Are you saying you disagree that the Constitution is considered less relevant today than it was in the earlier history of the United States? If so, that's fine; we simply disagree.

Certainly the past were not "the good ol' days," and nothing about what I said is to suggest the past was a better time than the present. Technological progress alone makes today immeasurably more luxurious. Rather, my point was that the Constitution and the limits have been diluted with each circumventing event made for the sake of facile law-making and problem-fixing. And today the Constitution is more often than not seen as quaint.

Maybe you're right; maybe the percentage of Americans who see the Constitution as outdated and irrelevant has remained steady over time. I don't have polling data. But from my personal experience, even in my lifetime, the marginalization of arguments based on the constitutionality of laws appears to have grown. It now seems that bringing up the Constitution as a roadblock to new lawmaking is considered a tired, predictable, and ultimately weak talking point in a debate.

Are you saying you disagree that the Constitution is considered less relevant today than it was in the earlier history of the United States?

Yes.

If anything, our First Amendment rights are now more robust than they were in the past. We have almost nothing like a modern-day equivalent to Anthony Comstock. The amount of obscenities you can get away with these days is higher thanks to people like Al Goldstein, Lenny Bruce and Larry Flynt setting historical free speech precedents. Labor movement violence is a thing of the past. The sexual revolution means pornography went from obscene to "meh, whatever". Film censorship no longer happens as much as it did in the period before the 1960s. The export restrictions on cryptography have been heavily softened to the point of being almost practically irrelevant. Left-wing politics, though hardly major, are no longer subject to any real suppression beyond punditry's ignorance.

As for the other amendments you listed, I presume they're in reference to mass surveillance. In which case, civil asset forfeiture dates back to maritime law, NSA has been documented to intercept ingoing telegraphs as far back as 1945, Operation Mockingbird had the CIA meddle with U.S. media, FBI has had COINTELPRO, DCSNet and other operations, so on and so forth. Nothing here is new.

You're viewing the past through exceptionally rose-tinted glasses, honestly.

Very well. I tentatively stand corrected on the historical significance of unconstitutionality as an effective means to stop unconstitutional government behavior.

Nevertheless, and perhaps in part because the Constitution has in fact been routinely steamrolled in the past, it seems that bringing it up as a counterargument to any law today is just short of pointless.

Part of the issue is that the very first people to steamroll the Constitution were... well, some of the very people we're supposed to look to as having known exactly what the Constitution meant. The Alien and Sedition Acts, for example, became law in 1798, and were passed and supported by some of the people who just a decade earlier had been expounding "the original meaning" of the Constitution to people in an attempt to get it ratified.

>Left-wing politics, though hardly major, are no longer subject to any real suppression beyond punditry's ignorance.

This is not really true. Left-wing political groups are still actively suppressed by police organizations on a regular basis, as well as Islamic groups (religious and secular), LGBT rights groups, and generally anyone involved in protesting. Police see protest groups as antagonists and act to disrupt them pre-emptively if possible.

The sources for this claim are broad; I would recommend looking into the leaked maryland state police spying documents (which show infiltration of non-violent activist groups), the FBI, local police, and bank conspiracies to disrupt the Occupy movement (long before any actions in the real world had been conducted by any group identifying as Occupy), and the Green Scare.

Combine this with "free speech zones," protest permits, and other before-the-fact restrictions on free assembly, and you can see very clearly how political speech outside the mainstream is suppressed in the United States.

(Interestingly, right-wing groups, white nationalism groups, and similar are not often targets of these investigations and are often protected by police during their protests. In many cases this is the result of local connections, but you have to wonder why animal activists are such a higher priority than white nationalist extremists, especially after Charleston.)

It's a far cry from The Red Scare, though, which was his point.

In what sense is it a far cry from the Red Scare? Which Red Scare, for starters? There have been two purges of leftists from American civil society in the 20th century, and both of them attempted (from the look of the outcomes) to marginalize leftist politics as far away from the mainstream as possible, to wreck the lives of anyone involved in leftist politics, and to discourage people from those politics due to the fear of the Inquisition turning its eye on them.

Of these goals, the first is no longer relevant (the media keeps leftists and similar out of politics far more effectively than periodically purging the State Department of leftist party members ever did). The second is very real and continues to be accomplished by various police agencies. Because of modern "terrorism" laws, various methods of protest are criminalized as terrorism (mostly pertaining to protests that disrupt businesses, like picket lines or sit-ins), and so protest groups can find themselves targeted by fusion centers, special anti-protest task forces, and federal policing agencies (like the DHS).

Finally, the last goal continues to be enshrined today. Free speech zones and militarized police presence at protests makes protesting a much less empowering act than it was in the 60s and 70s -- imagine if Norman Morrison had burned himself in a free speech pen miles from the Pentagon! Going to a protest now entails locking oneself in a cage and being stared down by beefy, roided-up cops that are actively trying to attack protesters and see protesters as an enemy force. Use of grand jury investigations, fusion centers, task forces, entrapment, and finally, the persistence of social media, makes it hard to join nonviolent groups without the fear of "something" coming up that could ruin you for life. The programming in American educational systems about "keeping Facebook friendly for colleges and employers" supports this self-censorship.

If you look into what is actually going on, possibly by researching some of the topics I mentioned in my last comment, you'll find that modern suppression of non-mainstream politics is indeed comparable to the red scare. The fact that it no longer occurs to such fanfare indicates that such behavior has been normalized on the part of the state.

The constitution was written primarily as philosophy, not politics. It has some new principles but ignoring it is nothing new. The founding fathers wrote it and then immediately threw it in the garbage (and not just technical rules, the principles upon which it is based) when the going got tough (Alien and sedition acts for a very explicit example)

I believe the Constitution was a work of genius, but I also believe it was conceived at a scale we've long since surpassed, and it's overdue for a massive refactoring. If nothing else, our current technological base enables a tremendously larger pool of representatives, for instance.

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