A law without consequence is just a really nice guideline. The bill of rights is one of those guidelines.
A fundamental flaw of the US constitution is its failure to mandate congress to pass laws that levy consequence upon those who violate it.
"oops, we'll stop" is not punishment or consequence.
Furthermore, it is the failure of judicial system and the US legal community at large to not implicitly hold any government employee or official (elected or otherwise) who violates any part of the constitution as an illegitimate agent of the government. To explain what I mean, if an FBI agent or employee participated in a warrantless search, upon that proof, any work they touched should be considered unacceptable. any legal case built on their work should be tossed out of court and any convicts should be released who were their victims. Any president that directs others to violate the constitution, implicitly, just resigned from office (after a legal due process where such violation is proved in court of course.)
They've rendered the most fundamental laws that guarantee rights to the people and limit the government's authority, a toothless guideline. So they can bend it to suit their interests. ("They" are the ruling class, against whom the constitution was drafted to begin with)
I feel like mandating a punishment (i'm making some assumptions on that idea here) would be it's own problem.
Let's say a given private or public organization makes a bad choice. What is the punishment? The guy who flipped the switch?
Dealing the whole topic of misguided or poorly sized punishments with every law seems like it would be a huge hassle. Not unlike mandatory minimums or even just fine ranges that apply reasonably to one scenario, but not at all to others.
As of right now the punishment is a warning that if the behavior is repeated the warning will also be. There has to be a middle ground here, difficulty of enforcement can't be the reason to eliminate enforcement entirely.
most of the bill of right amendments are for the government. But let's take the 14th amendment that bars slavery, congress should be mandated to pass laws that punish slave owners. For your specific example, when a company violates the law (e.g.: someone dies) the executives in charge or rogue employees who acted on their own are punished, that is how the law works already.
I was commenting specifically about the bill of rights in the constitution,not laws in general.
> Let's say a given private or public organization makes a bad choice. What is the punishment? The guy who flipped the switch?
In the military, orders which tell somebody to break the law aren't legal orders, and soldiers can be punished for following them (importantly, this does not preclude also punishing whoever gave the illegal orders!) Soldiers have a legal obligation to refuse illegal orders. So should bureaucrats.
This is just a polite fiction and no one is ever punished for giving illegal orders or for following them. Bloody Sunday resulted in absolutely no consequences for 1 Para. Tiger Force had illegal orders as their priority, were investigated and found guilty, and then absolutely nothing happened. The My Lai massacre resulted in a slap on the wrist for one guy.
You're wrong. There are some high profile cases where the system breaks down, but there are thousands times more situations that you've never heard about because everything gets done by the book and it never becomes a public outrage.
They became the ruling class after gaining independence from England's ruling class, so at the time of its draft they were trying to become a ruling class. Things like equality of the law, free speech, anti-search-and-seizure all helped them avoid England's tyranny.
The constitution was drafted at a time where there was an honor-based system of society. Dishonor, shame and society's distaste for it was the punishment for violating core principles like the bill of rights. But we no longer live in that society.
>A law without consequence is just a really nice guideline.
Laws are guidelines even with consequences involved; you can't forcefully prevent someone from doing something with a piece of paper that has some ink on it.
The courts might throw out evidence based on an illegal warrant or lack thereof, the officers involved might be punished. But in the moment the officers can collect the "evidence" and no piece of paper can do a single thing about it, especially if consequences are stipulated but they are fine with getting them.
The federal government is one of enumerated powers; there is no limit to the things it’s not allowed to do. It would be an unending task to come up with punishments for the things they are forbidden from doing.
The bill of rights was a huge mistake, for exactly the reason foreseen at the time of its passing: it creates massive confusion that the people only have some limited set of rights.
>it creates massive confusion that the people have some limited set of rights.
Governance in the US is derived first and foremost from the People, State governments are delegated certain powers from the People, and the Federal government is delegated certain powers from the States.
Furthermore, the powers that first and foremost rest with the People are understood to be granted by their Creator (who this Creator is specifically is not relevant, though it is generally assumed to be God, see "In God We Trust"). The Constitution and Declaration of Independence merely outline guarantees for those powers, no powers are explicitly granted by those documents because those powers already exist.
So you are patently wrong. Not only do the People "have some limited set of rights", they have all the rights. The State and Federal governments exist at the pleasure of the People.
The bill of rights limits the power of the Legislative branch (Congress). It says that Congress shall pass no law in violation of certain rights of the people. It charges the Judicial branch with determining which laws those might be.
It doesn't protect the people from the Judicial (Supreme Court) or Executive (police) branches. For example; where you're interpreting certain amendments to mean that police can't search you unreasonably, you've misunderstood. Congress shall pass no law that says the police can search you unreasonably.
It's presumed that the Judicial and Executive branches, by way of that restriction on Congress, won't be able to violate those rights since the law won't be on their side.
The last thing you want is a government where the judges punish congressmen, elected by the people, for passing laws. Remember, we didn't elect the judges or the policemen. We elected the congressmen. That's our only access to shape our government.
Sadly, too many of us don't understand how our government works.
You're missing my point, it prohibits congress from passing laws, but it does not force congress to punish themselves, the executive branch or the judicial branch when a violation occurs. "don't do it" is not a law, "don't do it, or else..." is a law. in other words,it prohibits actions before the fact, but there is no consequence to violating it after the fact, other than reversal where possible.
I wonder how this works as far as "the government cannot circumvent application of the warrant requirement simply because queried information is already collected and held by the government," goes.
I had some visibility (it wasn't secret or anything) to a telecommunications provider who simply had data duplicated without a filter from what seemed to be production communication straight to storage devices. It was a big operation. What happened with that data I do not know.
So on the surface it's a private company spending crazy amounts of money to simply copy mass amounts of data, voice, 3g, 4g etc ... Now maybe the government told them to do it, or even paid (the costs were pretty crazy), but it was on the surface a private company.
Would that apply here? It would seem not as the ruling cites data the government already collected for other reasons.
The limitation of electronic surveillance of US citizens by US government organizations, as far as I understand it, is that 'it requires a warrant.'
The method of data collection, and whether the data pre-exists or is collected post-warrant is semi-immaterial.
Like quantum mechanics, the warrant-triggering action is looking at any such data.
Which seems fair. I'd prefer data not be stored in the first place, but I grant there are legitimate law enforcement and national security reasons to do so.
If it has to / will be collected, then at least we can build an ironclad and clear legal requirement that any and all users can't look at it without first going through the court system.
Civil rights - including those provided by the Constitution and by statute - provide protections only until the government suspends them. The right of habeas corpus has been suspended at least four times in American history. And President Truman had American citizens of Japanese descent incarcerated into camps based solely upon their nationality and without any pretext of engaging in any criminal behavior.
A law without consequence is just a really nice guideline. The bill of rights is one of those guidelines.
A fundamental flaw of the US constitution is its failure to mandate congress to pass laws that levy consequence upon those who violate it.
"oops, we'll stop" is not punishment or consequence.
Furthermore, it is the failure of judicial system and the US legal community at large to not implicitly hold any government employee or official (elected or otherwise) who violates any part of the constitution as an illegitimate agent of the government. To explain what I mean, if an FBI agent or employee participated in a warrantless search, upon that proof, any work they touched should be considered unacceptable. any legal case built on their work should be tossed out of court and any convicts should be released who were their victims. Any president that directs others to violate the constitution, implicitly, just resigned from office (after a legal due process where such violation is proved in court of course.)
They've rendered the most fundamental laws that guarantee rights to the people and limit the government's authority, a toothless guideline. So they can bend it to suit their interests. ("They" are the ruling class, against whom the constitution was drafted to begin with)
I feel like mandating a punishment (i'm making some assumptions on that idea here) would be it's own problem.
Let's say a given private or public organization makes a bad choice. What is the punishment? The guy who flipped the switch?
Dealing the whole topic of misguided or poorly sized punishments with every law seems like it would be a huge hassle. Not unlike mandatory minimums or even just fine ranges that apply reasonably to one scenario, but not at all to others.
As of right now the punishment is a warning that if the behavior is repeated the warning will also be. There has to be a middle ground here, difficulty of enforcement can't be the reason to eliminate enforcement entirely.
most of the bill of right amendments are for the government. But let's take the 14th amendment that bars slavery, congress should be mandated to pass laws that punish slave owners. For your specific example, when a company violates the law (e.g.: someone dies) the executives in charge or rogue employees who acted on their own are punished, that is how the law works already.
I was commenting specifically about the bill of rights in the constitution,not laws in general.
> Let's say a given private or public organization makes a bad choice. What is the punishment? The guy who flipped the switch?
In the military, orders which tell somebody to break the law aren't legal orders, and soldiers can be punished for following them (importantly, this does not preclude also punishing whoever gave the illegal orders!) Soldiers have a legal obligation to refuse illegal orders. So should bureaucrats.
This is just a polite fiction and no one is ever punished for giving illegal orders or for following them. Bloody Sunday resulted in absolutely no consequences for 1 Para. Tiger Force had illegal orders as their priority, were investigated and found guilty, and then absolutely nothing happened. The My Lai massacre resulted in a slap on the wrist for one guy.
You're wrong. There are some high profile cases where the system breaks down, but there are thousands times more situations that you've never heard about because everything gets done by the book and it never becomes a public outrage.
The constitution was drafted by the ruling class, not against it.
They became the ruling class after gaining independence from England's ruling class, so at the time of its draft they were trying to become a ruling class. Things like equality of the law, free speech, anti-search-and-seizure all helped them avoid England's tyranny.
The constitution was drafted at a time where there was an honor-based system of society. Dishonor, shame and society's distaste for it was the punishment for violating core principles like the bill of rights. But we no longer live in that society.
>>Things like equality of the law, free speech, anti-search-and-seizure all helped them avoid England's tyranny.
Who is the "them" you are speaking of? Are you talking about women? People of color? Non-land owning white men?
The authors of the constitution at the time of it's drafting.
>A law without consequence is just a really nice guideline.
Laws are guidelines even with consequences involved; you can't forcefully prevent someone from doing something with a piece of paper that has some ink on it.
The courts might throw out evidence based on an illegal warrant or lack thereof, the officers involved might be punished. But in the moment the officers can collect the "evidence" and no piece of paper can do a single thing about it, especially if consequences are stipulated but they are fine with getting them.
The federal government is one of enumerated powers; there is no limit to the things it’s not allowed to do. It would be an unending task to come up with punishments for the things they are forbidden from doing.
The bill of rights was a huge mistake, for exactly the reason foreseen at the time of its passing: it creates massive confusion that the people only have some limited set of rights.
>it creates massive confusion that the people have some limited set of rights.
Governance in the US is derived first and foremost from the People, State governments are delegated certain powers from the People, and the Federal government is delegated certain powers from the States.
Furthermore, the powers that first and foremost rest with the People are understood to be granted by their Creator (who this Creator is specifically is not relevant, though it is generally assumed to be God, see "In God We Trust"). The Constitution and Declaration of Independence merely outline guarantees for those powers, no powers are explicitly granted by those documents because those powers already exist.
So you are patently wrong. Not only do the People "have some limited set of rights", they have all the rights. The State and Federal governments exist at the pleasure of the People.
I think you misread what I wrote. Edited my comment to add the word “only” to clarify.
It would indeed appear we are in agreement and saying in essence the same thing, just along different vectors.
The bill of rights limits the power of the Legislative branch (Congress). It says that Congress shall pass no law in violation of certain rights of the people. It charges the Judicial branch with determining which laws those might be.
It doesn't protect the people from the Judicial (Supreme Court) or Executive (police) branches. For example; where you're interpreting certain amendments to mean that police can't search you unreasonably, you've misunderstood. Congress shall pass no law that says the police can search you unreasonably.
It's presumed that the Judicial and Executive branches, by way of that restriction on Congress, won't be able to violate those rights since the law won't be on their side.
The last thing you want is a government where the judges punish congressmen, elected by the people, for passing laws. Remember, we didn't elect the judges or the policemen. We elected the congressmen. That's our only access to shape our government.
Sadly, too many of us don't understand how our government works.
You're missing my point, it prohibits congress from passing laws, but it does not force congress to punish themselves, the executive branch or the judicial branch when a violation occurs. "don't do it" is not a law, "don't do it, or else..." is a law. in other words,it prohibits actions before the fact, but there is no consequence to violating it after the fact, other than reversal where possible.
I wonder how this works as far as "the government cannot circumvent application of the warrant requirement simply because queried information is already collected and held by the government," goes.
I had some visibility (it wasn't secret or anything) to a telecommunications provider who simply had data duplicated without a filter from what seemed to be production communication straight to storage devices. It was a big operation. What happened with that data I do not know.
So on the surface it's a private company spending crazy amounts of money to simply copy mass amounts of data, voice, 3g, 4g etc ... Now maybe the government told them to do it, or even paid (the costs were pretty crazy), but it was on the surface a private company.
Would that apply here? It would seem not as the ruling cites data the government already collected for other reasons.
The limitation of electronic surveillance of US citizens by US government organizations, as far as I understand it, is that 'it requires a warrant.'
The method of data collection, and whether the data pre-exists or is collected post-warrant is semi-immaterial.
Like quantum mechanics, the warrant-triggering action is looking at any such data.
Which seems fair. I'd prefer data not be stored in the first place, but I grant there are legitimate law enforcement and national security reasons to do so.
If it has to / will be collected, then at least we can build an ironclad and clear legal requirement that any and all users can't look at it without first going through the court system.
Also
https://news.ycombinator.com/item?id=42797756 ("Federal Court (Finally) Rules Backdoor Searches of Data Unconstitutional (eff.org)", 82 comments)
Civil rights - including those provided by the Constitution and by statute - provide protections only until the government suspends them. The right of habeas corpus has been suspended at least four times in American history. And President Truman had American citizens of Japanese descent incarcerated into camps based solely upon their nationality and without any pretext of engaging in any criminal behavior.
You have rights only until you don't.