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.