Leaked: Info on US Data Collection Programs

[Carinthium]

Flagg, the U.S government has no right to attack people for breaking the law when the U.S government does it on a daily basis. For different reasons, both I and the typical Living Constitution advocate would agree on that much.

[Flagg]

Flagg, the U.S government has no right to attack people for breaking the law when the U.S government does it on a daily basis. For different reasons, both I and the typical Living Constitution advocate would agree on that much.

So you don't think the US should prosecute murderers?

[Carinthium]

At the absolute minimum, they should not prosecute murderers based on unconstitutional law. If I were in control, I would repeal said laws and let the States pick up the slack.

[Thanas]

It is kinda funny that nobody in this thread seems to bother about the actual implications of Obama doing this but instead spends time debating whether so-and-so should be shot or not.

[Carinthium]

Believe me, I am aware of them. As of right now, I'm trying to see if there's any way (from Australia, so likely exploiting legal loopholes) to at least evade U.S government survelliance. Once I've done that, I can move onto the much more tricky local stuff...

[Flagg]

It is kinda funny that nobody in this thread seems to bother about the actual implications of Obama doing this but instead spends time debating whether so-and-so should be shot or not.

And here comes the Obama bashing. I guess that congress and the courts are behind it as well means nothing.

[Thanas]

It is kinda funny that nobody in this thread seems to bother about the actual implications of Obama doing this but instead spends time debating whether so-and-so should be shot or not.

And here comes the Obama bashing. I guess that congress and the courts are behind it as well means nothing.

Sure it does, but last I checked these kinds of things were run not by congress or the courts, but the executive, whose head is adamant in defending this program.

[Aaron MkII]

How many times and how many different ways do we need to have the "obama is a terrible president" discussion? We're all aware of it, just like we're all aware that we can't do anything about.

[Broomstick]

Once the Louisana territory belonged to America, adding new states made sense. But here you're dismissing Thomas Jefferson's concerns that nothing authorises the Federal government to pay money for land in treaties. From a literalist perspective his argument is at least credible, and from an intentionalist perspective he would be a major authority on the matter.

There is nothing that prohibits the Federal government paying for land in treaties, either, and since the main alternative means of acquiring land is going to war over it I fail to see the problem here. There is a long history of nations ceding land to other nations (usually as an outcome of war, admittedly), if two nations agree to do it by exchanging land rather than bullets what is the problem here? Seriously? The Federal government most assuredly has the authority to set borders by treaty, and this is just a variation of doing that.

Jefferson's later rationalisations for the purchase lead to the conclusion he probably subconsciously knew he was a hypocrite anyway.

Only if you assume yours is the Only Right True Way - you're assuming it's impossible for him to come to a different conclusion than you do.

Now, where he was unquestionably a hypocrite was his stance on slavery, but that's a different topic.

[Flagg]

How many times and how many different ways do we need to have the "obama is a terrible president" discussion? We're all aware of it, just like we're all aware that we can't do anything about.

I find it hilarious that people keep conflating this wish Bush doing illegal wiretapping. This was all about as above board as secret laws in secret courts can get. Now you can say that we shouldn't have secret laws and secret courts, and I would agree with you.

[Knife]

Sorry, didn't see this till now and we're a page past it.

Knife, how do you distinguish legitimate from illegitimate judicial interpretations? A few American legal questions I'd be curious to hear your views on, and why:

How can you plausibly contend that the judicial decisions surroundign each of these cases was more than simply judicial creativity? And where can you draw a coherent line?

I don't know much about Oliver Wendall Holmes, though from what little I can gather I am opposed to it. What were his arguments for his posistion anyway?

I started doing a point to point response, but really, I decided to address the very notion of your grievance. Illegitimate/legitimate judicial interpretations. Please define the framework of each, because from where I'm standing I'm having a hard time figuring out what is an illegitimate judicial interpretation. Are there political aspects that could make it seen as 'illegitimate'? Sure, but we're dealing with a branch of government who's only job is to look at laws and reconcile them with existing case law and Constitutional law. Circuit Courts and SCOTUS are panels with decisions made by vote and majority wins, so plainly a political element here, but by design how can anything be illegitimate besides blatant corruption.

TLDR version, seems more a case of 'I don't like these particular things, so I label them illegitimate judicial interpretations'.

[Aaron MkII]

How many times and how many different ways do we need to have the "obama is a terrible president" discussion? We're all aware of it, just like we're all aware that we can't do anything about.

I find it hilarious that people keep conflating this wish Bush doing illegal wiretapping. This was all about as above board as secret laws in secret courts can get. Now you can say that we shouldn't have secret laws and secret courts, and I would agree with you.

Like you said, he black he has a "D"

Apparently for devil.

[loomer]

I don't know much about Oliver Wendall Holmes, though from what little I can gather I am opposed to it. What were his arguments for his posistion anyway?

The crux of his position was, y'know, the reality that courts make law, not legislators. Judges are the ones who interpret the law, and in that interpretation create it. Each decision is in fact the birth of a new and highly specific law; all other things are simply guiding factors that predict and aid in how that law will be created. If you're going to argue about judicial interpretation, you really need to look at Holmes and the Legal Realists, and ideally spend some time on the common law theorists as well.

That was what I basically understood the Living Constitution posistion to be. However, you are mixing up several things implicitly in your argument.

First, I will point out that except where constitutional interpretation is concerned judges have mostly been brought to heel, even if not fully. Judges act according to the law Parliament has given them- and if they act too far outside what is plausible, they will be sacked. The only exception is with matters of interpreting a formal Constitution- and even then there are informal limits to what judges can get away with and times when the executive simply ignores them.

Second, I will point out that just because judges make law doesn't make it morally acceptable. Judge-made law is retroactive, which creates what any deontological view must concede is a severe injustice. How can a person possibly be expected to obey a law they cannot be expected to understand? And how can they be expected to understand it if it is made retroactively?

Third, I will point out that there is such a thing as interpreting the law as it was supposed to be. When the judges do this, they are not making law in any way.

Fourth, and most important of all, I will point out that Simon Jester claimed that "For a sensible definition of 'unconstitutional', this would be unconstitutional." However, by the Living Constitution theory I'm pretty sure Simon_Jester supports (or at least something similiar), there is no such thing as a Constitution in practice- merely court decisions.

So the statement could be re-interpreted as "The courts should outlaw this". Without any decent moral arguments (since court decisions can always be reversed, a Living Constitutionalist cannot resort to them), he doesn't really have a case.

I am mixing up jack and shit. Since I'm talking about Oliver Wendell Holmes and not the later 'living constitution' movement (which, while it owes a great intellectual debt to Holmes, is not his school of thought. It dates to after his life.), you're the one doing the mixing. Go read Holmes.

[SirNitram]

How many times and how many different ways do we need to have the "obama is a terrible president" discussion? We're all aware of it, just like we're all aware that we can't do anything about.

I find it hilarious that people keep conflating this wish Bush doing illegal wiretapping. This was all about as above board as secret laws in secret courts can get. Now you can say that we shouldn't have secret laws and secret courts, and I would agree with you.

Am I the only one who read the (Revised) stories and felt it was an improvement over the last time I heard of the NSA monitoring all our shit? Sure, I'd rather the NSA and those who created the entire process(Which is alot of politicians going back, I beleive, to Nixon) were fired into low orbit as a gentle 'no'(Spaceship not included), but I'm rather pleased there's apparently not a giant seive in an AT&T room collecting everyfuckingthing.

[Carinthium]

There is nothing that prohibits the Federal government paying for land in treaties, either, and since the main alternative means of acquiring land is going to war over it I fail to see the problem here. There is a long history of nations ceding land to other nations (usually as an outcome of war, admittedly), if two nations agree to do it by exchanging land rather than bullets what is the problem here? Seriously? The Federal government most assuredly has the authority to set borders by treaty, and this is just a variation of doing that.

Because it involves the payment of money for the land- which is not a Federal power. If France had unilaterally ceded the land it would be a different matter.

Only if you assume yours is the Only Right True Way - you're assuming it's impossible for him to come to a different conclusion than you do.

Now, where he was unquestionably a hypocrite was his stance on slavery, but that's a different topic.

I'm saying that because of the circumstances. Jefferson, previously so State's Rights that he supported nullification (which even I don't agree with), had kept reasonably consistently to State's Rights principles up to that point. However, the idea of purchasing Louisana was one he balked at considerably with his Cabinet having to argue with him about the proposed Constitutional amendment. The offer was, however, limited-time only and had massive pragmatic benefits. Finally, Jefferson would justify himself by saying:

"It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good."

All of these things suggest the act of somebody rationalising a deed for it's pragmatic benefits.

I started doing a point to point response, but really, I decided to address the very notion of your grievance. Illegitimate/legitimate judicial interpretations. Please define the framework of each, because from where I'm standing I'm having a hard time figuring out what is an illegitimate judicial interpretation. Are there political aspects that could make it seen as 'illegitimate'? Sure, but we're dealing with a branch of government who's only job is to look at laws and reconcile them with existing case law and Constitutional law. Circuit Courts and SCOTUS are panels with decisions made by vote and majority wins, so plainly a political element here, but by design how can anything be illegitimate besides blatant corruption.

TLDR version, seems more a case of 'I don't like these particular things, so I label them illegitimate judicial interpretations'.

I've been thinking about the two rival schools of thought here, and would say that although the intentionalist interpretation is plausible the proper meaning of a legitimate interpretation is whatever the words literally say in their meaning at the time. Naturally, this is whatever their legal meaning was at the time of creation.

The reason I said what I said, however, is because I thought you were defending Simon_Jester's claim that modern U.S laws were unconstitutional. They technically are, but he has no right to criticise.

I am mixing up jack and shit. Since I'm talking about Oliver Wendell Holmes and not the later 'living constitution' movement (which, while it owes a great intellectual debt to Holmes, is not his school of thought. It dates to after his life.), you're the one doing the mixing. Go read Holmes.

You really don't get precision in wording, do you? What I said was that your claims were what I understood the Living Constitution movement to be saying (which is perhaps an imperfect understanding) so I could use the same arguments. Unless you want to claim your own description is inaccurate, you should adress my actual points.

[Rogue 9]

Common Law allows reference to traditional sources in its lineage stretching back to the Anglo-Saxons, so for starters with Secession the Northwest Territory Ordinance under the Articles of Confederation which explicitly bans secession is a legitimate reference.

Besides the fact that it is overriden by the intent of the Founding Fathers (who did not discuss secession), it is further overriden by the Tenth Amendment. IF you accept an intentionalist interpretation as superior to a literalist interpretation and IF you can establish the originators of the Tenth Amendment would have rejected secession

Given that the Constitutional Conventions rejected the idea of using force against recalitrant states, the intentionalist case for making secession illegal is on very thin ground.

I think you'd have to be insane or trolling to claim through a literalist interpretation that secession was prohibited, so I'll ignore the possibility.

Bullshit. First, several of the Founders did in fact discuss secession - in the context of it being treasonous (Washington), an "incalculable evil" (Jefferson), and the proposition of its legality being so insane that he was shocked that it was up for discussion in 1832 (Madison). Second, the 10th Amendment is completely irrelevant to the case, since it specifies how powers not given to the federal government in the Constitution should be distributed, and the power to dispose of and regulate the territory of the United States is placed firmly in the hands of Congress and nothing in the Constitution, 10th Amendment included, may be construed to prejudice the territorial claims of the United States (Article IV, Section 3, Clause 2). The legal secession argument has no ground to stand on.

[Carinthium]

On an intentionalist basis, the Founding Fathers must have considered secession possible in at least some circumstances or they wouldn't have seceded themselves. Since they weren't nationalists (nationalism hadn't been invented yet in the modern sense), we infer that they must have considered some of the States seceding from the rest valid under at least some circumstances. Otherwise conceded- I didn't know about that.

As for the literal argument, you're making the assumption that individual states are territory of the United States AND the assumption that the United States has a territorial claim upon the States. This leads into several problems:

-Prior to the Confederate secession, when had the United States even laid claim on the lands of the CSA as it's territory? Those were state territories. Lincoln made one after the secession had taken place, but by then it was too late as the United States constitution no longer applied.

-What literal evidence is there in the Constitution for the claim that the states are territories of the United States? Remember that you aren't allowed to appeal to intention (because we aren't discussing intention) nor to 'common sense', as common sense relates to intention.

EDIT: Although it isn't strictly evidence, I do find it humorous that in this respect the United States Congress metaphorically shot itself in the foot by describing acquired lands as 'territories'. This isn't part of Constitutional law, but it implies Territories are distinct from States.

[Knife]

-What literal evidence is there in the Constitution for the claim that the states are territories of the United States? Remember that you aren't allowed to appeal to intention (because we aren't discussing intention) nor to 'common sense', as common sense relates to intention.

EDIT: Although it isn't strictly evidence, I do find it humorous that in this respect the United States Congress metaphorically shot itself in the foot by describing acquired lands as 'territories'. This isn't part of Constitutional law, but it implies Territories are distinct from States.

Supremacy Clause putting the Federal government above the States, and the civil war that dotted the I and crossed the T on the issue.

[Carinthium]

The so-called "Supremacy Clause" ruled the Federal constitution the Supreme Court of the land. It is absurd to say that, taking that literally, it implies secession is impossible.

And the Confederate Secession War ("Civil War" is a clearly false name for it) is of no authority whatsoever in terms of law. In terms of how governments behave it affects a lot, but that is a different concept from legality.

[Gaidin]

EDIT: Although it isn't strictly evidence, I do find it humorous that in this respect the United States Congress metaphorically shot itself in the foot by describing acquired lands as 'territories'. This isn't part of Constitutional law, but it implies Territories are distinct from States.

Is there a reason they shouldn't be referenced differently? They're governed by federal law, but they don't have the same rights that a state has in the federal government.

[Carinthium]

Referenced differently is one thing. Calling them "territories" is what's humorous. The reason is this: IF we accept the premise (admittedly one I can't establish or I would) that the proper legal designation for such areas are "Territories", then the federal government is implicitly accepting that the States are not Territories, thus renouncing many of its own potential claims under the Constitution.

You could make the Constitution Law-Federal Law difference in what a "territory" is, but nowhere is the distinction made clear. Hence, whilst there isn't any rational argument here, it is amusing.

[Gaidin]

Yea but there's territory and Territory. Guam is a Territory. Florida is a State that is a territory of the US.

[Carinthium]

Yea but there's territory and Territory. Guam is a Territory. Florida is a State that is a territory of the US.

Had the idea of distinguishing two concepts by using one with a capital letter and one without been invented when Congress made the decision to call said regions Territories?

[Simon_Jester]

The reason I said what I said, however, is because I thought you were defending Simon_Jester's claim that modern U.S laws were unconstitutional. They technically are, but he has no right to criticise.

Put this way.

I think the useful purpose of having constitutional limits on government is to protect the rights of the people. Not to protect the rights of provinces.

The Patriot Act violates the rights of the people. Not just some arbitrary fetish you have about not letting the president react to a rapidly changing foreign policy issue. Therefore, there are non-trivial, non-lawyering, non-stupid reasons to be concerned with its constitutionality.

The so-called "Supremacy Clause" ruled the Federal constitution the Supreme Court of the land. It is absurd to say that, taking that literally, it implies secession is impossible.

And the Confederate Secession War ("Civil War" is a clearly false name for it) is of no authority whatsoever in terms of law. In terms of how governments behave it affects a lot, but that is a different concept from legality.

Bullshit. The Confederate states had no lawful standing to steal federal property from US government arsenals and naval facilities and treasuries. Plus, they were in gross breach of Article 1, Section 10:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

So basically, they were breaking a pile of binding laws. You don't get to ignore laws just because you have declared that they don't apply to you. Not unless the laws themselves are profoundly unjust, which was not the case here.

This "secession legal!" bullshit is absurd. I've never understood why scofflaws become romantic when they operate on a large scale and fight for slavery against freedom.

[Broomstick]

There is nothing that prohibits the Federal government paying for land in treaties, either, and since the main alternative means of acquiring land is going to war over it I fail to see the problem here. There is a long history of nations ceding land to other nations (usually as an outcome of war, admittedly), if two nations agree to do it by exchanging land rather than bullets what is the problem here? Seriously? The Federal government most assuredly has the authority to set borders by treaty, and this is just a variation of doing that.

Because it involves the payment of money for the land- which is not a Federal power. If France had unilaterally ceded the land it would be a different matter.

Let me get this straight - you're OK with the US conquering and confiscating land, but you're opposed to the peaceful purchase of land? What the fuck are you smoking?

Again - point to where an exchange of something in return for land is PROHIBITED in the constitution. Seriously, quote me the passage.

Meanwhile - the Federal government is CLEARLY permitted to engaged in treaties with other nations.
Meanwhile - Article I Section 8 CLEARLY gives Congress the ability to regulate trade with foreign nations, and you already conceded that Congress was on board with the Louisiana Purchase.
Meanwhile - Article IV Section 3 CLEARLY states "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" which sounds to me like Congress DOES have the authority to buy territory.

Again, I fail to see where you have supported your claim that somehow the Louisiana Purchase was an illegal transaction. As Congress approved the purchase and approved the funds this would seem entirely legitimate.

Only if you assume yours is the Only Right True Way - you're assuming it's impossible for him to come to a different conclusion than you do.

Now, where he was unquestionably a hypocrite was his stance on slavery, but that's a different topic.

I'm saying that because of the circumstances. Jefferson, previously so State's Rights that he supported nullification (which even I don't agree with), had kept reasonably consistently to State's Rights principles up to that point. However, the idea of purchasing Louisana was one he balked at considerably with his Cabinet having to argue with him about the proposed Constitutional amendment. The offer was, however, limited-time only and had massive pragmatic benefits. Finally, Jefferson would justify himself by saying:

"It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good."

All of these things suggest the act of somebody rationalising a deed for it's pragmatic benefits.

And this is bad because... ?

Look, the fact that Jefferson struggled with this is probably a good thing, the world would probably be a better place if more people actually gave a damn about the morality or legality of their actions. That doesn't mean that his end conclusion was wrong even if he changed his mind from a prior time. Being capable of change is a sign of intelligence and maturity, not some inherent sign of a great moral failing.

Frankly, I think you'd get more traction arguing that the land wasn't, in fact, France's to sell but rather belonged to the Natives, but I'm not sure of the history of the area in question prior to the Louisiana Purchase, was there any form of transaction between France and the Natives regarding land ownership or was this the usual European land grab situation?