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Louis Brandeis
Experience teaches us to be most on our guard to protect liberty when the government's purposes are beneficent. - Louis Brandeis
One of the arguments I've run across regarding the reporting on the NSA and the surveillance state goes something like this:
Given the distrust of the NSA it's no wonder that the NRA is so adamant about gun rights.
You can see the superficial logic of the argument—if you fear tyranny via the surveillance state, then you should equally fear a government monopoly on arms. But this logic is flawed and contrary to liberal thought in the 20th century (it remains to be seen what liberal thought will produce in the 21st century). I want to use two quotes to illustrate my point. The first is from Louis Brandeis' famous dissent in Olmstead:
"We must never forget," said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 407, "that it is a constitution we are expounding." Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed. [...] We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which, "a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387; Buck v. Bell, 274 U.S. 200. Clauses guaranteeing to the individual protection against specific abuses of power must have a similar capacity of adaptation to a changing world. [emphasis supplied.]
Brandeis is expounding a form of Living Constitutionalism (or if you prefer, Living Originalism).

More thoughts on the other side.

Brandeis is saying while we must look to our federal government to adapt and respond to collective action problems, or national problems, like health care, economic growth and job creation, the life and growth of our Constitution is not confined to growing the power of our federal government, it also is necessary to breathe life into "Clauses guaranteeing to the individual protection against specific abuses of power." Thus while we must and do applaud the counterrevolution against Lochnerism that was the New Deal, we also applaud, as liberals, the Warren Court's expansion of individual rights against government intrusion on our liberties and privacy.

In Olmstead, Brandeis was faced with adapting the liberty and privacy rights embodied in the 4th Amendment with regard to the then relatively new technology of the telephone. While recognizing the national power to regulate (in that case, it was enforcement of the National Prohibition Act) at the same time the clauses of protection from government power must also grow, in this case the liberty and privacy rights protected by the 4th Amendment.

In today's world, the technological challenges to our privacy and liberty rights are expanding at a dizzying pace. Our understanding of our constitutional rights requires an adaptation of the purposes of the protective clauses to our modern world.

Why? the skeptic might ask, does not the same apply to gun rights (FTR, it is my view that the Second Amendment's purpose was never to protect individual gun rights but rather to deny the federal government a monopoly on arms by guaranteeing the States the right to maintain armed militias)? After all, is it not government tyranny that we fear? I think this is wrong both in identifying what we fear and it is also wrong in not identifying the balance of interests the government has in restricting gun rights.

A simple thought: On September 11, 2001, over 3,000 Americans died from a terrorist attack. Since that day, over 300,000 Americans have died from guns. Does expanding individual gun rights strike the right balance given our modern condition? And conversely, does restricting our privacy and liberty rights strike the right balance with regard to the terrorist threat? I argue it does not. (Indeed, Barack Obama argued it did not prior to 2009.)

A vibrant and capable national government does not require an erosion of our liberty and privacy rights as we commonly understand the terms. Our liberty right does not mean we are free from taxation. To the contrary, a vibrant government is essential to maintaining those rights. Is restricting gun rights a restriction on our liberty? I think so. But on balance, I think it is the correct policy and consistent with the Constitution.

The other quote I want to offer comes from the famous footnote 4 from Carolene Products:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California,283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited.

This famous footnote is one of the seminal expressions of 20th century liberalism. What is it telling us? It tells us within the general principle of judicial deference to the elected branches of our federal government as expressed in the body of the opinion, there is as well a general impetus to, as Brandeis put it, adapt protective clauses in the Constitution to our changing world. And it says something more—something that makes us liberals and Democrats—that the Constitution should also be used to protect the defenseless, to help the powerless, to defend the oppressed. Remember the words:
[W]hether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
Of course, the Carolene footnote was breathed life by the Warren Court and is now under mortal attack by the Roberts 5.

But these seminal statements of liberalism, at least as it existed through the 20th century, are the logic behind our skepticism about the surveillance state and, at the same time, our rejection of the need for liberalization of individual gun rights.

It is who we are, or at least, who we used to be. And who we should strive to be again.

Originally posted to Armando on Mon Jul 08, 2013 at 06:36 PM PDT.

Also republished by Daily Kos.


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Comment Preferences

  •  Thanks, Armando. (3+ / 0-)
    Recommended by:
    Armando, Brecht, Words In Action


    Why? the skeptic might ask, dopes not the same apply to gun rights [...]
    Typo, Freudian slip, or both? ;)

    Somebody has to do something, and it's just incredibly pathetic that it has to be us.
    ~ Jerry Garcia

    by DeadHead on Mon Jul 08, 2013 at 06:45:27 PM PDT

  •  IMO (5+ / 0-)

    Those defending the NSA trampling over the Constitution are not liberals.

    IMO= in my opinion- for those ready to pounce.

    •  Let's take the arguments at face value (6+ / 0-)

      and refute them.

      I tried to do so here.

      •  The problem (2+ / 0-)
        Recommended by:
        sebastianguy99, joe shikspack

        is the AUMF.  The powers in wartime were not spelled out with great specificity and the courts have been very wary about taking cases that limit the executive's power during wartime.  This is what is missing in your analysis.  

        Ten years after its passage, and no sign of a repeal soon, the AUMF is the exception that is threatening to swallow the rule.

        The problem is the permanent war - which the Constitution is not well equipped to address.

        •  I read the Guantanamo Bay cases (1+ / 0-)
          Recommended by:
          deep info

          to, at minimum, articulate the possibility of an exception: the war is over there. The President needs to do better than the AUMF if he wants to bring the war home.

          The Hamdi plurality, for example:


          Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id., at 16. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable.    As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid.    The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.

              It is a clearly established principle of the law of war that detention may last no longer than active hostilities . . . .

              Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan . . . . If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

          Ok, so I read the polls.

          by andgarden on Mon Jul 08, 2013 at 08:43:33 PM PDT

          [ Parent ]

          •  Maybe (0+ / 0-)

            but then it comes to the internet and the NSA - the very idea of "where" is a slippery concept.

            Nonetheless - your quote suggests that getting out of Afghanistan could be interpreted as nullifying the AUMF since you could argue there is no longer any active combat.  

    •  "Those defending the NSA", here on Daily Kos: (10+ / 0-)

      The most vociferous of them keep citing the same problem - they're tired of the idolization of Snowden that they see on all sides.

      Ironic, as some of the Snowden demonizers have been accused of very similar warm & fuzzy, superficial idolization of Obama in the past.

      I'd be happy to have a Daily Kos where we could "take the arguments at face value, and refute them", as Armando says and does.

      But this won't work for people who are caught up in an emotional soap-opera, and are motivated more by feelings of revulsion towards pie-fight opponents, than by rational consideration of the facts that we know.

      This emotional soap-opera is, of course, motivating the most vociferous at both extremes of the pie-fight: The loudest roxxers and the loudest suxxers. Some of these cheerleaders have managed to channel their strong feelings while also paying close attention to the facts and rational arguments of the case. Others, not so much.

      But thank you, Armando, for putting facts and analysis at the forefront.

      "Every man has a right to utter what he thinks truth" Samuel Johnson

      by Brecht on Mon Jul 08, 2013 at 07:37:29 PM PDT

      [ Parent ]

      •  Im for a ban on discussing Snowden (7+ / 0-)

        Not because it is not an interesting discussion, but because we can't get to the actual discussion that matters.

        •  Absolutely. Shouting "Snowden" is threadjacking, (4+ / 0-)
          Recommended by:
          andgarden, Armando, DeadHead, Nada Lemming

          a very effective way to derail the infinitely more important discussion of NSA overreach which is dissolving our 4th amendment. It reminds me of people in I/P who shout "anti-semite" whenever possible, to avoid discussing West Bank settlements, etc.

          But the more play the soap opera gets, the more it dumbs down the whole argument. Everyone gets distracted by their emotional attachment to the Traitor/Hero debate, and pays less attention to the urgent issue behind door #3.

          I'll be quiet now. Yes, we should have a Snowden ban for the rest of July here. People can just go read the Guardian for their fix.

          "Every man has a right to utter what he thinks truth" Samuel Johnson

          by Brecht on Mon Jul 08, 2013 at 07:57:48 PM PDT

          [ Parent ]

        •  Snowden is a living symbol (1+ / 0-)
          Recommended by:

          I have no opinion on his character but he is a real, live, person.   He's not just some academic argument to be discussed and forgotten.  I mean how many times have I been told that I can't be outraged about his revelations because we knew it all anyway and so since we supposedly knew it all anyway that made it OK since when we knew it all anyway we didn't do anything about it, so shut up, Team Blue, more and better Democrats.  

          Snowden isn't letting us forget about it and shut up.  For that I thank him.  

          I thank him for reminding me that the Democratic Party is 100% complicit and has absolutely ZERO intention of doing anything other than more and better surveillance.

        •  Yep. (4+ / 0-)
          Recommended by:
          twigg, CroneWit, on the cusp, vcmvo2

          And add to that a ban on discussing the names one has been called while discussing Snowden. Or Greenwald.

          Thanks for writing a diary about subject that matters.

          Calling other DKos members "weenies" is a personal insult and therefore against site rules.

          by Bob Johnson on Sat Jul 13, 2013 at 02:42:38 PM PDT

          [ Parent ]

      •  False equivalence here ^^^ (0+ / 0-)

        It's not extremist to want to discuss that groundbreaking revelation that the NSA of the USA is spying on the world, including listening to private phone calls of its own citizens. But it is extremist to hijack every single diary on that discussion. I don't think those extremists give a damn about Snowden one way or the other, they just don't want any discussion of the reality of the NSA spy program.

        Stop trying to break everything down into for-and-against extremism.

        To thine ownself be true

        by Agathena on Tue Jul 09, 2013 at 06:49:14 AM PDT

        [ Parent ]

        •  You didn't read my comments at all carefully (0+ / 0-)

          I'm all for discussing the NSA. I don't like the constant Snowden soap-opera, because it gets in the way of that.

          "Every man has a right to utter what he thinks truth" Samuel Johnson

          by Brecht on Tue Jul 09, 2013 at 07:55:22 AM PDT

          [ Parent ]

          •  I did read your comments (0+ / 0-)

            I object to calling this situation a problem between two sides, both extremists. i don't see two sides. I see any discussion of the NSA derailed by a roving band of diary hijackers.

            To thine ownself be true

            by Agathena on Tue Jul 09, 2013 at 12:48:56 PM PDT

            [ Parent ]

            •  It seems pointless to debate with you on this. (0+ / 0-)

              I think you're not open-minded enough to see my point of view; you're too emotionally attached to your own.

              So, in brief:

              1) Yes, you are right that there are few idiot true-believers on one side, who have taken to jumping into any Snowden diary and calling him a traitor in the first comment. It's really annoying threadjacking, and it pulverizes rational debate.

              2) If you care to see my views with a bit more nuance, here's a seven comment thread, of kovie and I having approximately this same debate, two weeks ago.

              "Every man has a right to utter what he thinks truth" Samuel Johnson

              by Brecht on Tue Jul 09, 2013 at 03:27:06 PM PDT

              [ Parent ]

              •  It's an unfair tactic to label your opponent (0+ / 0-)

                as 'emotional' meaning that you are the only reasonable one.

                Kovie was right. I don't accept your view that this is a debate between two sides. This is like a physically abused woman going to the police and the cops saying "We want to hear the abuser's side of the story." There is only one abuser.

                To thine ownself be true

                by Agathena on Wed Jul 10, 2013 at 01:48:53 AM PDT

                [ Parent ]

                •  Is it unfair if it also happens to be accurate? (0+ / 0-)

                  I looked back through your comment history, about 30 comments that you made re. Snowden, NSA, etc.

                  I can see that you're intelligent, that you have paid attention and thought about these issues, and that you make several good points about them. But I keep noticing an emotional bias, which is tipping the scales of your judgment.

                  For example, you say:
                  "I haven't seen any worship of Snowden. worship means you agree with a person unconditionally, right or wrong. Worship means all your opinions are shaped by your high regard for that person."

                  You make worship too black-and-white. Worship can mean, merely: "extravagant respect or admiration for an object of esteem." I have certainly seen this around Daily Kos - partly in reaction to those unfairly tearing Snowden apart.

                  I am a shrewd and subtle analyst. Most people judge more emotionally than I do. But I do not think you are at all simple-minded. I am human. I might be mistaken.

                  "Every man has a right to utter what he thinks truth" Samuel Johnson

                  by Brecht on Wed Jul 10, 2013 at 08:00:19 AM PDT

                  [ Parent ]

      •  But it seems you are doing exactly that... (1+ / 0-)
        Recommended by:

        which you criticize.

        Not to mention that the implication that people ONLY defend the NSA because others idolize Snowden is absurd and dismissive of those who raise other serious issues that are worthy of consideration.

        •  You're making up implications I didn't make (0+ / 0-)

          I never said "people ONLY defend the NSA because others idolize Snowden". People have put forward many arguments, some of them quite nuanced.

          I said "The most vociferous of them keep citing the same problem". They may have other reasons, too, but they cite their dislike of the idolization.

          Can't you see that the worst pie-fighters, at both ends, are wrapped up in emotional team play? Here is one:

          Last week, I was fine with having a debate about more oversight over the NSA.

          This week, no more. I'm sick of people putting somebody like Snowden, or Manning, or greenwald on a pedestal so I have to question their judgement over how those warrants are obtained. So they have convinced me that there is nothing to be concerned about any longer.

          The more they scream about Snowden and Manning and Assange and Greenwald, the less likely I am to be on their side over the NSA

          "Every man has a right to utter what he thinks truth" Samuel Johnson

          by Brecht on Sat Jul 13, 2013 at 06:28:14 PM PDT

          [ Parent ]

          •  But that's a natural response. (0+ / 0-)

            It's an innate human response to filter everything through your perspective, to self-divide into groups based on past interactions/information and automatically trust or distrust things that come from a person based on what group they're affiliated with - a "us" versus "them" view.

            So, for example, a person who's mad at Assange for running from rape charges may see Snowden aligning themself with Assange and automatically begin to distrust what Snowden says (having grouped Assange into "them" and thus Snowden into "them" as well).  Or a person who thinks Assange is a hero may have seen an article from one journalist in the New York Times critical of Assange and then automatically distrust the reporting of another Times journalist on the Snowden story  (aka, having grouped Assange into "us", and this The Times into "them").

            It's just human nature to do so.  Usually people don't do this indirect association to a maximal degree, but it tends to color their initial reactions at the very least - either automatic suspicion or automatic acceptance of new data that has to be overcome.

    •  when... (0+ / 0-)

      you frame it on your own terms like that, which takes "trampling over the Constitution" as a given that everyone accepts as an axiom, it's easy to make a statement like that.

      It's no better than the anti-choice people saying "those defending killing babies"...

      "It's almost as if we're watching Mitt Romney on Safari in his own country." -- Jonathan Capeheart

      by JackND on Tue Jul 09, 2013 at 07:13:59 AM PDT

      [ Parent ]

    •  I voted maybe, because are you saying (2+ / 0-)
      Recommended by:
      greenbell, Nailbanger

      that given the fact that last week we learned that:

      1.  POTUS Obama LIED to us about the extent of the NSA Surveillance when he claimed only meta-data was collected and that there was adequate oversight by Congress and Courts?

      2.  Chief of NSA LIED to Congress about the extent of the NSA Surveillance that we now know is a dragnet of EVERYONE, EVERYWHERE, EVERYTHING.

      That our defense is that we can update our right to arms from guns to drones?

      Separation of Church and State AND Corporation

      by Einsteinia on Sat Jul 13, 2013 at 02:16:05 PM PDT

      [ Parent ]

  •  Except that the Gun Owners are Under Siege (3+ / 0-)
    Recommended by:
    Armando, Brecht, Shockwave

    and demand a "more searching judicial inquiry," or else.

    Justice Scalia and his four pals are happy to give it to them. After all, Real America needs to be protected from "racial entitlements" only available to Those People.

    Ok, so I read the polls.

    by andgarden on Mon Jul 08, 2013 at 07:06:24 PM PDT

  •  Moby Dick laid out the scenario years ago (4+ / 0-)

    A side note first: Hubert Dreyfus, a retired philosophy prof from Berkeley, points out that Heidegger, by general agreement to be the most important philosopher of the 20 th century, Dreyfus says his work can be understood if one understands the novel Moby Dick.

    Now that the humanities are taken to be dead in our universities, they come back with a vengeance when looking for insights on what is going on.

    this is who we are

    The most prescient portrait of the American character and our ultimate fate as a species is found in Herman Melville’s “Moby Dick.” Melville makes our murderous obsessions, our hubris, violent impulses, moral weakness and inevitable self-destruction visible in his chronicle of a whaling voyage. He is our foremost oracle. He is to us what William Shakespeare was to Elizabethan England or Fyodor Dostoyevsky to czarist Russia.
    Our country is given shape in the form of the ship, the Pequod, named after the Indian tribe exterminated in 1638 by the Puritans and their Native American allies. The ship’s 30-man crew—there were 30 states in the Union when Melville wrote the novel—is a mixture of races and creeds. The object of the hunt is a massive white whale, Moby Dick, which, in a previous encounter, maimed the ship’s captain, Ahab, by biting off one of his legs. The self-destructive fury of the quest, much like that of the one we are on, assures the Pequod’s destruction. And those on the ship, on some level, know they are doomed—just as many of us know that a consumer culture based on corporate profit, limitless exploitation and the continued extraction of fossil fuels is doomed.
    We Are All Aboard the Pequod
  •  Striving, yes, indeed (2+ / 0-)
    Recommended by:
    Armando, Words In Action

    .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

    by Roger Fox on Mon Jul 08, 2013 at 07:22:20 PM PDT

  •  secret court flexing secret/law?no hearing?come on (0+ / 0-)

    Don Benedetto was murdered.-IgnazioSilone(BreadAndWine)

    by renzo capetti on Mon Jul 08, 2013 at 08:47:13 PM PDT

  •  As much as I love Justice Brandeis (2+ / 0-)
    Recommended by:
    sebastianguy99, deep info

    and wish he were still here on the court, we live in a different America now.  We have so many rightwing federal judges who write whatever the f they want, call it a judicial opinion that nobody sees, because they make it unpublished.  More secrets, Armando and it's been going on for decades.  They didn't do it in Justice Brandeis' day, but they do it now.  Then there are the cases that get thrown out like Valerie Plame's because they call it "state's secrets."  Before that, they claimed sovereign immunity.  The constitution has become "quaint."  Before that, the Geneva Conventions became "quaint" in this country.  I learned that in hearing about the treatment of Gulf War veterans who came home sick and the government said it was stress and all in their heads.  Now we know they were exposed to a toxic soup.  Actually, they knew it in 1996, the first time I heard Geneva called "quaint," by an NIH scientist trying to argue that untested vaccines used on soldiers didn't violate any ethical standards and of course Geneva didn't matter, because it was "quaint."

    Shine like the humblest star.

    by ljm on Mon Jul 08, 2013 at 09:19:35 PM PDT

  •  OT, I give myself 9.5 points for recognizing face (0+ / 0-)

    I took off half a point for not coming up with his first name fast enough.

  •  Your argument seems to be that the logic is not (0+ / 0-)


    Combine a belief that the the Court can expand the reach of government more or less at will (the essence of the Brandeis statements) with a demonstrated willingness to overreach at will, and you  support a belief  that the government is not to be trusted.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Sat Jul 13, 2013 at 02:24:43 PM PDT

  •  The irony of the gun debate and its (0+ / 0-)

    intersection with the NSA debate is that now that we know about the NSA's vast domestic spying apparatus, it solves the mystery as to why the Senate saw no real need to pass expanded background checks.  

    They think they already know what people are doing and can track gun owners without bothering with enacting a contentious, political hot potato law.  They've "got it covered", as they say.

    Now I don't "know" that that's true, but it is really stupid to think that the government would not be following anyone who owns a gun in this country - something that would easily be revealed about a person through their calling patterns, internet activity and GPS tracking of digital devices.

    Finally, I'll conclude by making this point -- having an arsenal of weapons to fight this kind of government "tyranny" - if that's what people are really thinking about when they are buying up arms - is about as stupid as thinking that shooting a ghost - or perhaps a cloud would be more appropriate as a metaphor here - is going to make a damn bit of difference.

    lol - there's a reason why the military industrial complex is getting into the cyberwar business - they know where the market is going.

    •  The senate didn't pass universal (1+ / 0-)
      Recommended by:

      background checks because many of them, especially on the republican side, get tons of campaign cash from the gun manufacturers.

      Then there is this,

      Finally, I'll conclude by making this point -- having an arsenal of weapons to fight this kind of government "tyranny" - if that's what people are really thinking about when they are buying up arms - is about as stupid as thinking that shooting a ghost - or perhaps a cloud would be more appropriate as a metaphor here - is going to make a damn bit of difference.
      The hard core tea party crazies truely believe they should have a right to keep an Abrams tank and nuclear weapons in their back yard. They believe that's their right. To hell with your right to safety and liberty.

      Knowledge is Power. Ignorance is not bliss, it is suffering. If you like hypocrite Obama, you'll love hypocrite Hillary.

      by harris stein on Sat Jul 13, 2013 at 06:08:36 PM PDT

      [ Parent ]

  •  What I like about the gun nuts (0+ / 0-)

    is that they don't want the arguments all academic and reserved to those with law degrees.  Nope, they just plain and simple want their rights as they read the Constitution.  They assume they are smart enough to read it.  

    Now, I just wish we could get more people reading the other amendments and not relying on the NSA, CIA, FBI, DOJ, Homeland Security, White House, Congress, the Supreme Court, FOX, MSNBC etc. to tell them what they mean.  

  •  Superb (1+ / 0-)
    Recommended by:

    ...and kicks butt, Armando.

    Thanks for hauling Brandeis into this convesation.  A lot of the youngsters don't know who he was.

    50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

    by TarheelDem on Sat Jul 13, 2013 at 02:43:12 PM PDT

  •  I suppose it depends on when and for what... (0+ / 0-)

    purpose one believes the Constitution should or should not breathe.

    Too often one's political persuasion will be the criterion for the decision, and the principles involved will therefore follow.

    When legal theory is discussed, there are few limits to the combinations one may use to construct a position. Most are valid. In the determination of result one combination of interests will win out over the other.

    One could say, after all, that because of the changed environment that there is now a compelling interest to obtain all information to promote safety and provide more efficiency in the fair administration of government. These are generally matters of degree.

    While the interpretation offered here is completely valid, would it be wise to use it as the point of departure for legal decisions to the exclusion of others that may be more applicable in the particular case?

  •  All well and good, but... (0+ / 0-)

    ...I have yet to see anyone address some basic questions.

    In an age when terrorists hijack planes and fly them into building or strap on suicide bombs, what steps are necessary to gather relevant intelligence?

    What risks are we willing to take in the interests of privacy?

    Where do privacy rights stop when the lives are at stake?

    The information exists. How much more difference and how much worse is it when it is not exclusively in corporate hands?

    To what degree does the surveillance program a political reality that we are all complicit in? Should a plane fly into a building again, whoever is president will be lucky to escape impeachment.

    The administration says that the surveillance program has helped stop over 50 terrorist plots. You can say it's a lie, but that doesn't really address the question of whether the program worth it.

    Me, I don't know. But I would appreciate some intelligent discussion instead a long discourse about a side issue.

    "There is no room for injustice anywhere in the American mansion." Lyndon Johnson

    by pkgoode on Sat Jul 13, 2013 at 03:07:24 PM PDT

    •  My attempt at some answers: (0+ / 0-)

      a) steps that are non-controvertially legal.
      b) risks that do not impinge upon well-understood legal rights.
      c) where the law, as generally-understood, says. (I'm by no means an expert, but from what I've read, 'when lives are at stake' justified almost any action committed by a legal authority; hence, retroactive immunity and hot pursuit and the like.)
      d) much worse.
      e) quite complicit.

      "Gussie, a glutton for punishment, stared at himself in the mirror."

      by GussieFN on Sat Jul 13, 2013 at 03:27:47 PM PDT

      [ Parent ]

  •  This is the discussion I was looking for (0+ / 0-)

    It is the discussion we should be having.

    That said, there are ways that we can protect this country from lawlessness, yes, that's what terrorism is, and still not trample on the Constitution. The Patriot Act and the revisions of FISA, are being used as  power grabs in the name of security. The DOJ and Executive using the mind bending argument that decisions on national security cannot be challenged because it would risk national security must not be allow to stand by either the courts or congress.

    The solution now lies with Congress, as it always has, to fix this by exercising its duty to check and balance the other two branches, especially the Executive Branch.

    As with the AUMF, which should be repealed, congress must stop abrogating its responsibilities.

    We will never be completely safe and we must not surrender our liberties to achieve it.

    I've partially read some of the comments here. There are some really great discussions. I plan on reading them more thoroughly later tonight.

    "Information is power. But like all power there are those who want to keep it for themselves" Aaron Swartz, 1986 - 2013

    by TheMomCat on Sat Jul 13, 2013 at 03:19:52 PM PDT

  •  Note which prohibition (2+ / 0-)
    Recommended by:
    on the cusp, happymisanthropy

    Stone expounds upon first in Footnote 4.  It is the Right to Vote.   And, as you point out, it is that which is under attack from the Roberts Court, most explicitly in Shelby County.

    Stone was trying to lay a basis for protecting individual liberty while restricting the Court from getting too activist, as it had in the Lochner era.  I know of quite a few conservatives who wish to bring back Lochner.  I don't doubt that Roberts is one of those.  And, I have no doubt that part of his long game is undermining Footnote 4.

    Well said, Armando.

    With the Decision Points Theater, the George W. Bush Presidential Library becomes the very first Presidential Library to feature a Fiction Section.

    by Its the Supreme Court Stupid on Sat Jul 13, 2013 at 03:29:12 PM PDT

  •  I agree, Snowden is not the issue (0+ / 0-)

    The issue is that we are witnessing not just the rise of the modern surveillance state but the use of a Stasi like organization on steroids to enable the government to conduct spying on anyone using a digital electronic communications device anywhere in the world. The issue also must be what gives the US government the right to do this. In my opinion the US government has no right to do this through a secret rubber stamp kangaroo court (foreign intelligence surveillance court).

    When Obama says that the American people have nothing to fear from this stasi on steroids spying, he has no credibility. Why? Because the question should be what do his reassurances mean when he is no longer president? Nothing.

    Also, one issue that isn't being explored fully is the use of private contractors in the modern surveillance state. There is a conveyor belt of money that goes to the private contractors then returns to the politicians in the form of massive amounts of campaign cash. This conveyor belt is an institutionalized kickback.

    The tea party crazies who scream about their 2nd Amendment rights and that to keep tyranny in check they have a right to the same weapons the military possesses have totally missed the point. It was Edmund Burke who said All that is necessary for the triumph of evil is that good men do nothing. The irony is that Burke espoused classical liberalism which not only is about small government but is also about small standing armies with small weapons.

    To keep tyranny in check we only need to listen to all sides of an issue then vote. We have gotten in trouble today because we have allowed in the name of free speech to give extraordinary political power to corporatists. This was never what the founders intended.

    The tyranny is not here yet. But it is right around the corner staring at us in the face in the form of the corporatists. After World War 2 we kicked most of the corporatists out of the government. Reagan allowed them back in. Now it can be accepted fact that 99% of our political leaders are corporatists. Tyranny isn't far behind.

    Knowledge is Power. Ignorance is not bliss, it is suffering. If you like hypocrite Obama, you'll love hypocrite Hillary.

    by harris stein on Sat Jul 13, 2013 at 05:08:26 PM PDT

  •  Thank you for seeing Brandeis (0+ / 0-)

    again. So rational - I am so sick of the lazy jurists we have on the Supreme Court now.

    We need better justices. It's all about the Supreme Court. We have to break the choke hold that those 5 have right now.

    Nothing liberal gets done with those 5 and their agenda.

    Although a soldier by profession, I have never felt any sort of fondness for war, and I have never advocated it, except as a means of peace. ~ Ulysses S Grant

    by vcmvo2 on Sat Jul 13, 2013 at 06:36:26 PM PDT

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