What you have described is the sort of government we have, but it's not one characterized by the rule of law -- or at least not characterized so thoroughly as you imply. If law can be retconned, then we are not ruled by law at all; we are ruled by the ones doing the retconning.

Law can be retconned. That's what a court decision is. Convictions or exonerations under a court decision cannot be retconned (except by pardon).

Yes, we are ruled by the ones doing the retconning: that's what elections are for.

I don't disagree that legally you are correct.

But I think you might be missing my point. The constitution is on display in the nations capital. Copies hang on the walls of courtrooms around the country. It is taught to school children. It is (in theory) the supreme law of the land.

If it were meant strictly for closed door interpretation by qualified individuals I doubt this would be the case. It would be like the bible during the dark ages. Only highly trained and qualified priests would be able to correctly understand it and pass their deciphering on to the masses.

The point is that we live in a democracy. We are entitled to read the agreement we are supposed to be living under and to ascertain that it is (or isn't) being followed. In theory, (if anyone gave a shit), we can then elect people who will appoint judges who actually follow the document rather than weaseling around it for who knows what purpose while keeping the masses in the dark.

Now, maybe the system is in need of overhaul for new times. But that is how it is supposed to work. Don't _ever_ feel you aren't qualified to ascertain an injustice or an infraction of the rules. And please don't suggest others don't have this right either. Down that path lies darkness.

It is a purposely vague document outlining the basic form of government leaving out all important detail and deferring that to said government and courts; it is by design intended to be interpreted by qualified individuals. The notion that it's some clear simple document anyone can read and properly understand is simply contrary to history and contrary to how law operates even back then. It was never the supreme law of the land so much as the supreme framework of the law to be later implemented by the land.

> If it were all a matter of interpretation we wouldn't need an actual written constitution.

That sentence quite literally makes no sense; all writing is a matter of interpretation, writing something down doesn't remove interpretation without great effort; in fact that's what legalese is, an attempt to remove all possible interpretation (which still fails continually; thus judges) and the constitution is not written in that manner because it's a general outline, not an attempt at really creating practical law.

What exactly is vague about this?

"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."

or this?

"All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills"

or this?

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

Now, I agree in portions such as this:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

That what comprises "public safety" is open to some degree of interpretation.

But the document, as a whole is not that opaque.

The intent is to be a transparent set of rules. Ones that you and I, as participants in a democracy can view and insist are followed. We can't just say "oh, judges know better" and leave it at that. That isn't a democracy, isn't representative and leads to a very bad place. We have to demand representation and a rule of law. We can't allow the law to be bent to the point it really isn't law anymore. We, as citizens, must be in control of our government. To do that, we must individually be able to read and judge the rules and ascertain if they are or are not being followed. And elect those who agree to uphold rather than subvert the process.

There's plenty vague about those things; by what rules shall the house and senate operate... unspecified and left to the house and senate to figure out just as a thousand other things are. Most of the document is open to interpretation, as is all written word by man anywhere. Even today people can't agree on the meaning of the second amendment.

Just because you can find a few things that seems specific is in no way an argument against my point; I didn't say it had no specifics, I said much of it is vague and intentionally so. The real law of the land is the U.S. Code which is the actual law derived from the framework the constitution lays out. The notion that anyone can understand the constitution is simply wrong; without a correct legal grounding in common law and precedence you have no idea what the constitution actually means or how law is derived from it. Just because you can read a sentence does not mean you understand it the same way everyone else does nor that everyone agrees on what the words mean. That's why we have judges and precedence and a common law foundation, to guide the interpretation in a direction most can agree on.

Many of the rules for the house and senate are specified, very clearly, as well.

Sorry, it isn't a "vague document" nor a "rough guideline". It is very specific on many points. Also, the idea that no one but trained professionals can read or understand if the document is being followed is not only wrong but abhorrent. Certainly, legally the judiciary is to interpret the law for implementation, I don't disagree. But again... we as voters have a right and responsibility to read the rules, to understand the rules, to ascertain if they are being followed and to vote accordingly. The ultimate power, in theory, resides with us, not with "trained professionals". This principal is of extreme importance for our system and seems to be quite often forgotten.

I agree that we as voters vote our interests; I don't, and won't agree that the average joe can read and correctly interpret the constitution and they never will. It is a legal document and understanding it requires more than just the words on the page.

That's a common line from some sectors. It gets repeated a lot. There is probably a reason for that but I don't believe it's objective.

It's common because it's true, whether you choose it accept it or not really doesn't matter, legal documents cannot be understood merely by the words on the page. They exist in a field of precedence and lacking an understanding of the precedence the common person cannot properly understand the intended meaning which whether you see it or not is referencing that precedence.

I'm sorry. You don't need legal training to read and understand most of the Constitution. Much of it is fairly plain and straightforward. Much of the "context" you speak of often comes after the fact. I would suggest rather than trying to beat a worn out point you take half an hour and actually read the document. You can do it... even without a law degree. We can read it.. we can see if it is manifestly being violated, we can vote accordingly. That is the intent. The intent is not that we are governed by an army of lawyers twisting a document into whatever they choose.

Don't play superior, you're not; I've read it more than a few times and worked in law enforcement. You think your interpretation is somehow right while ignoring the reality that reasonable people disagree on the meaning of it and denying they even can. You're blinded by your own ideology. We're done.

I'm sorry you think I'm playing superior. That's not my intent. I'm also sorry you feel as you do. I think I've made my point. You seem to be deliberately ignoring it. You appear to have heard something and are parroting it without thinking about it. I don't think that's the best thing to do. And I agree, we are done.

> <i>If the Constitution said "there may be no dog-walking on Thursday", the constitutionality of dog-walking on Thursday would rest entirely upon the decisions of the judiciary with regards to its constitutionality</i>

What you are asserting is that we are not ruled by written law, but by a judiciary, who feels themselves free to invent "escape hatches" to avoid old commitments now deemed undesirable.

Of course I am. That's by design. The textual literalists of the Constitution are as bad as Biblical ones. Written law informs the interpretation of the judiciary. That's how it's been literally-literally since day one.

On some points interpretation may be needed. On other points it's a stretch. At still other points maybe a stretch to breaking and beyond.

You may not care for literal text, but a lawful society depends on it. Governments just doing whatever they feel is best at the moment aren't generally very robust. There has to be restraint over a judiciary. A limit to how far they can stretch things. Opinions vary on what this limit is, but, back to the original point, some aspects of NSA data collection, from my point of view very clearly exceed this limit as embodied in the constitution.

Probably the real answer is we need an update. A 200 year old document might not be the best guide for modern times. But you can only have authorities claim it is day when it is really night for so long without people starting to suspect corruption. And I think that's where we are at. Sadly.

Er, there is restraint over the judiciary. Justices can be removed by the legislative branch.

It's hard. But that's intentional, too.

What if the removed justices sued and the judiciary hearing the case ruled that, in fact, Constitutional provisions be damned, the legislative branch may not remove justices.

Were that to happen, how could you argue that they are wrong?

You effectively can't, because "but the Constitution" is not a method of legal operation in the United States. At that point, you indeed do have a legitimate breakdown in governance. I expect such a situation would cause the kind of crisis that destroys a government.

(I'm not saying I am describing something that is good. I prefer to live in the world of the descriptive when it comes to legal matters, rather than the prescriptive. There are things I want very much to see changed--but I recognize that the process that exists isn't going away.)

So who got to decide that it works this way?

The Constitution doesn't say it works this way, and that was the document that was voted on by the representatives of the people. So whoever it was that decided it actually works a totally different way, why should I care what they think?

Yep. And a constitution.

Yes, that is by design.

Then the legislature can make a new law which can nullify a judiciary's decision. Or the executive can just stop arresting people for the crime and then the judiciary never gets a say.

That's what checks and balances are.

If the old, nullified Constitutional provision said that dog-walking on Thursdays was illegal, what new law is the judiciary supposed to pass to make dog-walking illegal on Thursdays again? If the judiciary is free to impose whatever interpretation on whatever text they want, and then their interpretation is the real law, then there is no law the legislature can pass to change that.

Of course everyone always has the possibility of fighting; civil war is always an option. But if the <i>principle</i> is that the judiciary gets to make law just howsoever it pleases, then one loses the ability to call the government out on anything. It just becomes "that's not what I want" versus "that's not what you want".

Which is where we are at with this surveillance mess. Except that because we have a written Constitution with an explicit method for amendation, instead of an implicit right of amendment by Judiciary, we do have a basis for pointing out that the government is out of bounds and for demanding reform. Reject that and everything becomes legal and there is nothing you can do except complain that you don't like it.

The judiciary doesn't pass laws. The judiciary can choose to nullify a law by choosing "not guilty" for anyone charged under a law that's unjust. The executive can also just not arrest people seen walking their dogs on Thursdays. The legislature could just revoke the law that made it illegal to begin with, then the executive and judiciary have no right to arrest or convict under it anymore – even if the previous precedent was considered sound.

This is how the government works. Yes, transition periods may be sloppy (people may be arrested for walking their dogs), but it will equalize.

Legislature makes an unjust law The executive can choose to enforce or not to enforce If the executive enforces, the judiciary can choose not to convict

Let's say for this specific scenario, assuming the surveillance isn't Constitutional (big assumption):

1: Executive begins doing something that's not Constitutional Judiciary chooses not to convict Law is nullified and executive will stop enforcing (what would be the point?)

2: Executive begins doing something that's not Constitutional Judiciary chooses to convict (the law is now officially Constitutional) Legislature disagrees with convictions and can pass specific laws outlawing the original executive actions, OR revoke the original law which allowed the unconstitutional interpretation

This is all by design. This is how it's meant to work. Just because you don't think it's working in your favor does not mean it's broken.

(First a note: "what new law is the judiciary supposed to pass" was meant to be "what new law is the legislature...".)

I'm not sure we disagree. You seem to be arguing that no one branch is the final arbiter of what is constitutional; that each is allowed its independent opinion. I agree with that. What I was arguing against in this thread is the proposition that the judiciary alone gets to decide what is constitutional and that it gets to do so regardless of what the constitution actually says.

You ended with "This is all by design. This is how it's meant to work," which is a claim that only makes sense if we have a system where the constitution actually means something and its meaning is binding. If the judiciary is free to redefine the constitution however they want, then we are not living under a government that has a design or a correct way to work.