Apparently, here in the E.U we're all guilty.. or not?

[Joe]

I was just thinking about the problems originated by age, like the numerous amendments. I don't see why it would be a big deal to rewrite it in a more fluid document.

The amendments fit into the text--I think rewriting the constitution, which would require the (at least temporary) cessation of the American government and could involve drastic changes in the American system, would be far more severe than you think. I couldn't see it happening short of following a military dictatorship. What parts in particular do you think are so inadequate that they require such a necessity?

Such a necessity, obviously none. But we've revised our own Constitution here one or two times since 1975 without problems. Why couldn't you just make the modifications you want, make sure they don't change the text meaning and only then put the revised Constitution into place? Of course, giving the trouble we're having here to put into place an E.U Constitution, I realize that the more complex the country, the harder it is to change one of its founding bases. The fact that americans pratically revere the U.S Constitution and Founding Fathers makes it even more complicated.

Ain't broke. See no reason to do any fixin'.

[The Duchess of Zeon]

Such a necessity, obviously none. But we've revised our own Constitution here one or two times since 1975 without problems.

Don't you have an amendment process for doing that?

Why couldn't you just make the modifications you want, make sure they don't change the text meaning and only then put the revised Constitution into place? Of course, giving the trouble we're having here to put into place an E.U Constitution, I realize that the more complex the country, the harder it is to change one of its founding bases. The fact that americans pratically revere the U.S Constitution and Founding Fathers makes it even more complicated.

I just don't understand what's wrong with the amendment process; why a totally new constitution needs to be promulgated, and revisions to the original are insufficient.

Literally--without the constitution, the USA would be fifty sovereign and independent states. That document directly empowers and governs the federal government in all aspects and regulates its arrangements with the various states; without it, America would be as divided as Europe. It's so important because it created America as a nation instead of a collection of nations.

[Colonel Olrik]

Don't you have an amendment process for doing that?

No. There are a load of political/judicial processes and checks before the new text is published. There's also article 288, which establishes limits to the revisions. I'd post a link to it, but I can't find the entire Const. in English, just the fundamental law.

I just don't understand what's wrong with the amendment process; why a totally new constitution needs to be promulgated, and revisions to the original are insufficient.

Because it adds noise to the document. Instead of having a concise document written in modern language, you have an ever growing text full of outdated laws (like the amendments forbidding and allowing again alcoholic drinks), and that makes it harder to read.

[The Duchess of Zeon]

Because it adds noise to the document. Instead of having a concise document written in modern language, you have an ever growing text full of outdated laws (like the amendments forbidding and allowing again alcoholic drinks), and that makes it harder to read.

The purpose of the constitution, however, is to provide a framework for the state, not necessarily to be concise--merely to handle the operations of the federal government. Also, I think you don't fully understand how the amendments are added to the constitution:

Overview of the Constitution

Look at the main body, not the section with the amendments. You'll see sections of text outlined in blue. Those have been modified from the original by the amendments--which in fact fit seamlessly into the text.

[Joe]

Minor cosmetic changes. The fact that our Constitution prohibits alcohol once and later on again doesn't affect the way our government works. Honestly, this sounds a bit like the whole stock options expensing debacle that so many people have been making noise about over the past couple years.

[Colonel Olrik]

The purpose of the constitution, however, is to provide a framework for the state, not necessarily to be concise--merely to handle the operations of the federal government.

OK, but clarity and being concise is an advantage. It prevents confusion, and makes it easier for the common citizens to understand the basic law.

Also, I think you don't fully understand how the amendments are added to the constitution:
Look at the main body, not the section with the amendments. You'll see sections of text outlined in blue. Those have been modified from the original by the amendments--which in fact fit seamlessly into the text.

My bad. I didn't realize the original text was altered.

[CelesKnight]

OK, but clarity and being concise is an advantage. It prevents confusion, and makes it easier for the common citizens to understand the basic law.

Correct me if I'm wrong, but I've heard that the new EU Constitution has about 400 articles. On the other hand, the US Constituion has just a handful of articles and admendments, for a total of 7 pages in my law book. As such, I suspect that the US Constitution is far easier to read and understand.

[Perinquus]

And here I was prying my own business, thinking this thread had nothing to do with me..

Peringuus, you actually sustained the EU law is inferior because it was so an hundred years ago? That seems to be a somewhat flawed position.

That's not exactly the position I am trying to argue; I sort of got sidetracked onto that.

My point again, is that out constitution has given us a stable, strong government which has helped create the conditions for our current material prosperity and freedom, and that no written constitution in the world has a better record at achieving this than ours does. In light of this, I am not at all convinced of the need to model aspects of our legal system after those of other countries whose track records in this case are not markedly better and many of which are worse. Or rather, let me say I don't see that it is either correct or necessary for the judicial branch of our government to do this.

Now if the American people, through their elected representatives in the legislative branch see certain aspects of other countries' legal systems they wish to emulate, and subsequently vote those measures into law in accordance with the U.S. Constitution, that is another matter. Laws in this country are supposed to be made by the legislative branch, whose members are accountable to the American people, not the judical branch, whose members are accountable to no one. The judicial branch is supposed to review legislation within the framework of the U.S. Constitution and the American legal system.

[BoredShirtless]

Now if we were centuries ahead of the rest of the world in our laws and concepts of human rights,,

Prove this. You may have gotten to "innocent until proven guilty" first, but that doesn't mean the rest of your laws and concepts of human rights are "centuries ahead".

if our system led us to these advances sooner than the rest of the world,

Assumption. Prove it.

From the following website:

http://www.pinn.net/~sunshine/gage/inquis/law.html

Torture was removed from the law code in Saxony between 1770 and 1783. Switzerland and Austria removed torture from their law codes about the same time. In 1762, Empress Catherine removed torture from the jurisdiction of the lower courts and in 1767 restricted the cases in which it could be used and then only with the special permission of the governor of the province. Napoleon removed torture from the law codes of many states in Europe when he conquered them. To their eternal shame, some states readopted torture when Napoleon was driven from their land. Torture continued to disgrace the jurisprudence of Wirtemberg and Bavaria until 1806 and 1807, Hanover (which was ruled by the English king) until 1819, and Baden until 1831.

I think you will find we removed torture from our system of jurisprudence long before these dates. You want proof of the superiority of the English/American system of jurisprudence? I think being far ahead in removing torture from the law books is eloquent proof of that assertion, thank you very much.

You're comitting a Hasty Generalisation fallacy. You proved only that you removed torture and "guilty until proven innocent" first. You did NOT prove your assertion that your laws and concepts of human rights are "centuries ahead".

Because your country isn't perfect. If the USA was a utopian society, then your fear of "diluting the system" would be understandable.

But the USA isn't perfect, far from it. Now don't be alarmed by the following, but the rest of the world may infact have one or two judicial decisions which made the relative society a better place! Suprising, no?

The rest of the world has made many contributions, but I remain firm in my conviction that our system of criminal justice was far ahead of that practiced throughout most of the rest of the world until quite recent times, and is still far better than that practiced in many countries unto this day.

Opinion only.

I also remain firm in my conviction that the business of writing the laws which will govern Americans remains the sovereign right of the American people, and no other.

Strawman. In the opening post Justice O'Connor stated that you will rely - or at least take notice - of foreign courts. That does not mean you're putting a pen in some foreigners hand and saying "here, write some of our laws".

[Darth Wong]

Perinquus, one question: as of today, how are your laws any better than those of other first-world nations? You still have the most restrictive drug laws. You still have the most restrictive laws on prostitution. You lack hate-crime laws. Your constitution does not bar discrimination on the basis of sexual orientation.

Frankly, legal comparisons from centuries ago are a complete red-herring (not to mention rather ironic; Thomas Jefferson drew heavily on French political movements of his era for the Bill of Rights, without which the US Constitution would quite frankly suck).

And your claims of your laws producing a more successful society are dubious at best; there are many factors which led to the material success (leaving aside negatives such as murder rates) of the USA in the 20th century, not least of which was WW2. To suggest that it can be simply attributed to the constitution is extremely simplistic thinking, in which no effort whatsoever is made to show causality.

[Perinquus]

Perinquus, one question: as of today, how are your laws any better than those of other first-world nations? You still have the most restrictive drug laws. You still have the most restrictive laws on prostitution. You lack hate-crime laws. Your constitution does not bar discrimination on the basis of sexual orientation.

I am quite willing to admit that in some respects European laws are more advanced today. I'm willing to admit marijuana should probably be legalized and regulated, though hard drugs absolutely not (I see firsthand how addictive and destructive they are - you just can't give society's tacit approval to that); and I also agree prostitution should be legalized and regulated. But as for hate crime laws, I see them not only as superfluous, but also a bad idea. I mean really, murder, assault, vandalism, intimidation, abduction, all these things are already against the law, why the need to pile more penalties on top of those that already exist for these offenses? All hate crime laws do is mark out certain types of victims as being somehow more special, more worthy of protection than others, and I'm sorry, I just don't buy that. The law should protect everyone equally. Assault or murder is already illegal, and just because the crime was motivated by some sort of prejudice should not matter. If some crazy asshole breaks a chair over my head because I looked at his girlfriend, and then kicks me while I'm down, breaking several ribs and causing internal injuries, am I any less injured or violated than the guy who was beaten up because he was black or Jewish or homosexual or whatever? Why should my assailant get a lighter penalty for what he did than some skinhead who puts a Jew or or homosexual in the hospital? Is one offense really less serious than the other?

As for the constitution not barring discrimination on the basis of sexual orientation, I expect in the fullness of time we will pass an amendment to that effect, though it will be strenuously opposed by the religious right.

Frankly, legal comparisons from centuries ago are a complete red-herring (not to mention rather ironic; Thomas Jefferson drew heavily on French political movements of his era for the Bill of Rights, without which the US Constitution would quite frankly suck).

The whole thing was simply brought up to indicate that in certain respects, our legal system was ahead of those practiced elsewhere in the world, and in light of this, it seems strange to assert that we must modify our largely successful system to be more in accordance with others, many of which do not have a track record as good as ours.

As I said already, I don't assert that we have the market cornered on virtue, or that there are not things we can learn from other legal systems. But any changes made along those lines must be made by the legislative branch, not the judicial, because the legislature is accountable to the people and the judiciary is not.

And your claims of your laws producing a more successful society are dubious at best; there are many factors which led to the material success (leaving aside negatives such as murder rates) of the USA in the 20th century, not least of which was WW2. To suggest that it can be simply attributed to the constitution is extremely simplistic thinking, in which no effort whatsoever is made to show causality.

This is a bit of a strawman Mike. I never said that the U.S.'s prosperity could be attributed to the constitution. I said it helped to create the conditions that made this possible. In other words, it was one factor among many. But I think it is a significant factor nonetheless.

[TheDarkling]

Frankly, legal comparisons from centuries ago are a complete red-herring (not to mention rather ironic; Thomas Jefferson drew heavily on French political movements of his era for the Bill of Rights, without which the US Constitution would quite frankly suck).

I would say the Bill of Rights was more largely influenced (to put it charitably) by the English Bill of Rights which was written in 1689 (100 years before the US Bill of Rights was proposed), which granted Right to Bear Arms, freedom of speech, right to Fair trial, no cruel or unusual punishment etc - it was somewhat expanded (only protestants guaranteed arms in the English version etc and the English Bill is more Parliament Vs Monarch in tone than People Vs State) but essentially the US bill of Rights was cribbed from a 100 year old (at the time) English document.

[BoredShirtless]

I am quite willing to admit that in some respects European laws are more advanced today.

So why are you against taking notice of foreign laws and decisions again?

[Perinquus]

I am quite willing to admit that in some respects European laws are more advanced today.

So why are you against taking notice of foreign laws and decisions again?

You obviously missed it (which really takes some talent, since I've mentioned it in two separate posts now). I am not against the American people, through their elected representatives in congress, modeling some legislation on European (or other) precedents if they, the American people, wish to do so. What I am against is judges legislating from the bench, and deriving their legal opinions from legal systems outside our own because A) it's unconstitutional, and B) this is not done in accordance with the will of the people, but rather according to the judges' own personal opinions. Well that's not how American law is supposed to be made. Our traditions and the whole philosophy upon which our country was founded stand squarely against the imposition of laws by fiat, which is what judges legislating from the bench are doing.

[BoredShirtless]

I am quite willing to admit that in some respects European laws are more advanced today.

So why are you against taking notice of foreign laws and decisions again?

You obviously missed it (which really takes some talent, since I've mentioned it in two separate posts now). I am not against the American people, through their elected representatives in congress, modeling some legislation on European (or other) precedents if they, the American people, wish to do so. What I am against is judges legislating from the bench, and deriving their legal opinions from legal systems outside our own because A) it's unconstitutional, and B) this is not done in accordance with the will of the people, but rather according to the judges' own personal opinions. Well that's not how American law is supposed to be made. Our traditions and the whole philosophy upon which our country was founded stand squarely against the imposition of laws by fiat, which is what judges legislating from the bench are doing.

The laws derived from your Constitution are NOT perfect, you even admit this. So again, tell me why it's so bad to reference International laws for a different take on things, as long as the judges at all times remain WITHIN THE CONTEXT OF THE CONSTITUTION.

[Perinquus]

So why are you against taking notice of foreign laws and decisions again?

You obviously missed it (which really takes some talent, since I've mentioned it in two separate posts now). I am not against the American people, through their elected representatives in congress, modeling some legislation on European (or other) precedents if they, the American people, wish to do so. What I am against is judges legislating from the bench, and deriving their legal opinions from legal systems outside our own because A) it's unconstitutional, and B) this is not done in accordance with the will of the people, but rather according to the judges' own personal opinions. Well that's not how American law is supposed to be made. Our traditions and the whole philosophy upon which our country was founded stand squarely against the imposition of laws by fiat, which is what judges legislating from the bench are doing.

The laws derived from your Constitution are NOT perfect, you even admit this. So again, tell me why it's so bad to reference International laws for a different take on things, as long as the judges at all times remain WITHIN THE CONTEXT OF THE CONSTITUTION.

Because it's not their job to do this. Because international laws are not necessarily one jot more "perfect" than American laws. Because the makers of international laws have no accountability to the American voter. Because it's the job of the legislature, not the judiciary to model U.S. legislation on foreign laws if that meet reflects the will of the voters. Haven't I made all this abundantly clear yet?

[BoredShirtless]

The laws derived from your Constitution are NOT perfect, you even admit this. So again, tell me why it's so bad to reference International laws for a different take on things, as long as the judges at all times remain WITHIN THE CONTEXT OF THE CONSTITUTION.

Because it's not their job to do this.

Technically your wrong, otherwise the two rulings in the opening post wouldn't have been made with connections to International Laws.

If International Laws fall within the scope set by your Constitution, then again for the third time, what's the big deal with REFERING to them? Not in place of your Constitution or your laws but as a REFERENCE?

Because international laws are not necessarily one jot more "perfect" than American laws.

Maybe. But if used together with your own, they may be able to help form a better decision.

Because the makers of international laws have no accountability to the American voter.

Irrelevent. The makers of foreign laws won't be making yours.

Because it's the job of the legislature, not the judiciary to model U.S. legislation on foreign laws if that meet reflects the will of the voters.

Says you. If the Judges can use foreign laws as a reference, what the fucks the big deal? Nothing. You're being way too patriotic.

[Perinquus]

The laws derived from your Constitution are NOT perfect, you even admit this. So again, tell me why it's so bad to reference International laws for a different take on things, as long as the judges at all times remain WITHIN THE CONTEXT OF THE CONSTITUTION.

Because it's not their job to do this.

Technically your wrong, otherwise the two rulings in the opening post wouldn't have been made with connections to International Laws.

No, I am not technically wrong. Just because justices have done it, doesn't mean it's technically correct. Activist judges have "interpreted" many things into the Constitution that I simply defy you to find according the the meaning of the text. The "right to privacy" is a prime example. It is nowhere in the Constitution. Many people, even many pro-abortion people, thing Roe vs. Wade was a poor decision because of this, and would have preferred if the issue had been settled in the legislature, rather than being based on a very shaky foundations, constitutionally speaking.

If International Laws fall within the scope set by your Constitution, then again for the third time, what's the big deal with REFERING to them? Not in place of your Constitution or your laws but as a REFERENCE?

If they do "fall within the scope" set by the Constitution, that rather suggests that there is then some precedent on the issue already extant in American law, does it not? If that's the case, what reason is there to go to foreign legal precedents?

Because international laws are not necessarily one jot more "perfect" than American laws.

Maybe. But if used together with your own, they may be able to help form a better decision.

This may come as a shock to you, but it is not the job of the court to "do good", it is the job of the court to apply the law. This point may be best illustrated by a small episode from the life of Justice Oliver Wendell Holmes. After having lunch with another judge, named Learned Hand (yes, that was his actual name), Holmes entered his carriage to depart. As he did so, Judge Hand's parting salute was: "Do Justice, sir, do justice".

Holmes had the carriage stopped, and replied: "That is not my job. It is my job to apply the law."

On another occasion, Holmes wrote that his primary responsibility as a judge was "to see that the game is played according to the rules whether I like them or not." On one of his decisions on the Supreme Court, he said: "When we know what the source of the law has said it shall be, our authority is at an end."

If I may quote Thomas Sowell again, he wrote:

The case for upholding legal principles, known and relied upon by other, is precisely that it can be done, and done while preserving a free society, whereas playing cases by ear requires far more knowledge than anyone possesses and is incompatible with the rule of law and the freedom which depends on that rule. The specific virtues of laws - their justice, compassion, equality, or adjustment to social realities, for example - are of course important. But a major part of the benefits of law comes from its being laws as such, from its being a dependable framework within which millions of people may plan and act, whether or not the laws have other specific virtues.

When judges start "interpreting" laws on a case by case basis, in order to reach an outcome which they personally feel is good, they weaken that framework, and make the law something that cannot be relied upon. They make it into something subjective which can mean at times one thing, and at other times another. This is why the judges must stay strictly within the framework of the Constitution. And ever since the days of the Warren court, too many of them have not done this.

Because the makers of international laws have no accountability to the American voter.

Irrelevent. The makers of foreign laws won't be making yours.

If judges are legislating from the bench (again), making laws by judicial fiat, and they are basing their decisions on foreign laws, then the makers of foreign laws are, in effect, making American law. They're just doing it indirectly, with the justices of teh U.S. supreme court as their agents.

Because it's the job of the legislature, not the judiciary to model U.S. legislation on foreign laws if that meet reflects the will of the voters.

Says you. If the Judges can use foreign laws as a reference, what the fucks the big deal? Nothing. You're being way too patriotic.

How is it "too patriotic" to want your government to operate the way it was set up to operate, and the way it's supposed to operate? How is it "too patriotic" to want to maintain the separation of powers, and the checks and balances written into our Constitution? How is it "too patriotic" to dislike seeing branches of government arrogate to themselves powers not granted by the supreme law of the land? Especially when any increase in the power of government must come at the expense of the people?

[Vympel]

No, I am not technically wrong. Just because justices have done it, doesn't mean it's technically correct. Activist judges have "interpreted" many things into the Constitution that I simply defy you to find according the the meaning of the text. The "right to privacy" is a prime example. It is nowhere in the Constitution. Many people, even many pro-abortion people, thing Roe vs. Wade was a poor decision because of this, and would have preferred if the issue had been settled in the legislature, rather than being based on a very shaky foundations, constitutionally speaking.

If it wasn't technically correct it would be struck down. That's the job of the courts.

If they do "fall within the scope" set by the Constitution, that rather suggests that there is then some precedent on the issue already extant in American law, does it not?

The Consitution is not a piece of legislation. It has nothing to say on many issues. What BoredShirtless meant was that if a ruling from outside an American jurisdication is Consituttional if it were to be applied here, why not use it.

If that's the case, what reason is there to go to foreign legal precedents?

Taking into account what I just said, the reason one goes to foreign legal precedents is because there are great legal minds out there that may have dealt with a specific problem, and you haven't, and while it is not binding, you would be well advised to take their reasoning into account if you feel it is persuasive and relevant to the issue at hand. I have read a myriad of judgements where American Judges have been cited in Australian decisions, and vice versa (law trivia: Justice Dixon of the Australian High Court is universally recognized as the greatest common lawyer of the 20th century), not to mention English and Canadian decisions.

This may come as a shock to you, but it is not the job of the court to "do good", it is the job of the court to apply the law. This point may be best illustrated by a small episode from the life of Justice Oliver Wendell Holmes. After having lunch with another judge, named Learned Hand (yes, that was his actual name), Holmes entered his carriage to depart. As he did so, Judge Hand's parting salute was: "Do Justice, sir, do justice".

Holmes had the carriage stopped, and replied: "That is not my job. It is my job to apply the law."

On another occasion, Holmes wrote that his primary responsibility as a judge was "to see that the game is played according to the rules whether I like them or not." On one of his decisions on the Supreme Court, he said: "When we know what the source of the law has said it shall be, our authority is at an end."

Statute must be interpreted. That's the job of the courts.

When judges start "interpreting" laws on a case by case basis, in order to reach an outcome which they personally feel is good, they weaken that framework, and make the law something that cannot be relied upon. They make it into something subjective which can mean at times one thing, and at other times another. This is why the judges must stay strictly within the framework of the Constitution. And ever since the days of the Warren court, too many of them have not done this.

That's purely your opinion. I have never, ever seen a judgement where the Justice in question has not made massive, excruciating reference to relevant authority and reasoning on which to base their decision.

If judges are legislating from the bench (again), making laws by judicial fiat, and they are basing their decisions on foreign laws, then the makers of foreign laws are, in effect, making American law. They're just doing it indirectly, with the justices of teh U.S. supreme court as their agents.

"that over time we will rely increasingly ? or take notice, at least ? increasingly on international and foreign courts in examining domestic issues."

Hardly what you're saying.

How is it "too patriotic" to want your government to operate the way it was set up to operate, and the way it's supposed to operate? How is it "too patriotic" to want to maintain the separation of powers, and the checks and balances written into our Constitution? How is it "too patriotic" to dislike seeing branches of government arrogate to themselves powers not granted by the supreme law of the land? Especially when any increase in the power of government must come at the expense of the people?

Are you suggesting that the Supreme Court does not have authority to interpret and if necessary, read and/or strike down laws from the legislature in light of the Constitution? Of course they do. They're the only ones empowered to do so. And, considering that the Constitution is not legislation and has nothing to say on hardly any specific areas of law, it is well within the common law traditions of American jurisprudence (which was around before the constitution, necessarily by English colonial origins) to draw upon the decisions of foreign courts in their arguments if they find them persuasive. They've been doing it for decades. Merely saying that they will increasingly rely/take notice of international legal developments is the best way to ensure you are making the *best* decision. Judges understand their duty to the legislation in front of them (if any) all too well. Your doomsaying about judicial fiat does not correspond with reality- the originating article says zero about anything of the sort.

[Perinquus]

It's pretty clear none of us is going to change the others' minds, so I will cease for now. But one point of yours simply demands rebuttal:

If it wasn't technically correct it would be struck down. That's the job of the courts.

If the court itself - the branch normally charged with reigning in unconstitutional practices, the branch which is supposed to be the watchdog for the others - is the branch behaving unconstitutionally in this case, then how can you blithely assert that "it will be struck down". Why will it be? Who will strike it down?

Quis custodiet ipsos custodes.

[Vympel]

If the court itself - the branch normally charged with reigning in unconstitutional practices, the branch which is supposed to be the watchdog for the others - is the branch behaving unconstitutionally in this case, then how can you blithely assert that "it will be struck down". Why will it be? Who will strike it down?

Quis custodiet ipsos custodes.

A subsequent Supreme Court makeup. The Supreme Court is not a monolithic unchanging institution, nor should it be. As the highest court, they are not bound by precedent, and can review and/or distinguish previous decisions if they can make a compelling argument, and convince their fellows, that something is bad law. As it is, I find the rhetoric about certain things like the "right to privacy" being unconstitutional, purely by virtue of the phrase not being in there, totally absurd. The constitution has nothing to explicitly say on MANY things- such criticism is born out of fundamental misunderstanding about what the Constitution is supposed to do- it is quite frankly not the be all and end all of every American's life and the sum total of their entitlements. Why? Simple:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Does it really take an Australian to point out something so plain? The only reason people think the "right to privacy" decision was bad is because they clearly don't understand the Constitution, what it does, and what it doesn't do.

[Spoonist]

Just some opinions here:

The age of a legal system is no argument for that legal systems worth.
If that would be true then Sharia and Judeo laws would reign supreme.
Why the USA constitution was better at the time of its creation was that it was in fact NEW and could thus be written with contemporary values.

ALL legal systems should look on other systems and try to find new improvements. The only inferior system is the one who will not change with the times.

[Spoonist]

The problem with an historical approach to this discussion can easily be seen in your quote here:

My point again, is that out constitution has given us a stable, strong government which has helped create the conditions for our current material prosperity and freedom, and that no written constitution in the world has a better record at achieving this than ours does.

You are confusing cause and effect. In another era the US constitution would have been a recipe for disaster and conquest. The US constitution was an excellent document in it's own time and place. In the future it and all other constitutions will be outdated and updated.
And to claim that the US constitution has the best and longest track record is historically ignorant. It led to a civil war within 70 years. Examples from han-dynasty, roman empire, etc, show a longer stability over a greater %age of the world population. But it would be stupid to claim that their constitutions would be better than the US constitution for a country today.

[Spoonist]

in many European countries you are not innocent until proven guilty, but guilty until found innocent

Could you please take this back since it is clearly your personal opinion and not a fact?

[Perinquus]

If the court itself - the branch normally charged with reigning in unconstitutional practices, the branch which is supposed to be the watchdog for the others - is the branch behaving unconstitutionally in this case, then how can you blithely assert that "it will be struck down". Why will it be? Who will strike it down?

Quis custodiet ipsos custodes.

A subsequent Supreme Court makeup. The Supreme Court is not a monolithic unchanging institution, nor should it be. As the highest court, they are not bound by precedent, and can review and/or distinguish previous decisions if they can make a compelling argument, and convince their fellows, that something is bad law. As it is, I find the rhetoric about certain things like the "right to privacy" being unconstitutional, purely by virtue of the phrase not being in there, totally absurd. The constitution has nothing to explicitly say on MANY things- such criticism is born out of fundamental misunderstanding about what the Constitution is supposed to do- it is quite frankly not the be all and end all of every American's life and the sum total of their entitlements. Why? Simple:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Does it really take an Australian to point out something so plain? The only reason people think the "right to privacy" decision was bad is because they clearly don't understand the Constitution, what it does, and what it doesn't do.

I understand what the Constitution does, and what it doesn't do quite well. It is a document that outlines the powers of government, not the rights of the people. It makes no reference to indivitdual rights, except to list certain ones that may not be infringed by the government. But in fact there is no right to privacy in the same sense as the right of free speech or right against unresonable search and seizure. The Constitution has nothing to say about privacy, though the 1st, 4th and 5th amendments have been interpreted to include a right to privacy. Our current ideas about privacy are usually held to have their origins in the famous law review article of Warren and Brandeis, although they were in particular addressing the issue of privacy and the press. The supreme court first broached the issue in 1964 in the Griswold v Connecticut decision overturning a state ban on birth control and solidified in the majority's Roe v Wade discovery of a privacy right in the “penumbra” of the Constitution in order to find rationale for overturning state bans on abortion. Privacy is covered in a number of court cases, such as a 1967 SCOTUS decision which affirmed the right to private communications by outlawing wiretapping (except under certain circumstances approved by the court).

Other kinds of privacy, such as the right to keep information about yourself private, for example, haven't been so clearly upheld. For example, in 1974 the Supreme Court decided that your bank records belong to the bank, to do with as they see fit.

There is no right to privacy defined in the Constitution. If there is a tight to privacy at all among those "others retained by the people", it was clearly not considered on a level with those that are enumerated in the Constitution, especially as the government clearly has license to invade your privacy in certain respects. The dissents to Griswold carry two important points. The liberal Justice Hugo Black siad, "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." Justice Potter Stewart added, "I think this is an uncommonly silly law....But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do."