I agree that cynicism is warranted, but an alternative view is that rights and freedoms are gradually being offered to a wider and wider percentage of the population. We start off with rights reserved for all wealthy white landowners... along the way we get more rights for people of all races... both males and females... and so on as our reality comes into greater conformance with our ideals.

This is the "arc of the universe is long but it bends towards justice" narrative that Obama and MLK have favored; it resonates with me at least, even though I certainly believe there remains much work to be done.

That narrative is only applicable retrospectively. It doesn't say anything about the future. Whichever way the arc of the universe bends, we call justice.

It's not a narrative, it's a forecast. It reflects a belief that divinely inspired human intelligence will win over evil. MLK was an activist, not a historian. If justice was the same as history, we wouldn't have a word for justice.

And when those phenomena are fought, it is on the basis of the Constitution.

The success of fighting it only works as well as 'where does public opinion on the issue currently lie'.

The constitutionality of a law is a political red herring. My favorite example of this is gay marriage. All the way between 1776 and 2015 it was illegal - yet somehow, magically, in 2015, banning it became unconstitutional.

Did the Constitution change in 2015, without us noticing? Did the lawyers advocating for it figure out some sequence of utterances that made a lightbulb go off in the heads of the judges?

No. What happened is public opinion changed.

The constitution gives you theoretical rights. Whether or not you actually have any of them is a direct product of what the public thinks of you

> Did the Constitution change in 2015, without us noticing? No. What happened is public opinion changed.

Another great example of the same phenomenon is how the US Supreme Court ruled[1] that it was OK to record TV shows on home video recording devices, such as VCRs, in 1984.

There were no changes in the Constitution, and copyright law had become even more oppressive. What changed was that VCRs has become widespread by 1984 and the Supremes could sense that public opinion was strongly in favor of home recording. In fact, a couple of the Justice owned VCRs themselves. They were motivated to find an argument to make it legal.

[1] https://www.theatlantic.com/technology/archive/2012/01/the-c...

"All the way between 1776 and 2015 it was illegal..."

The legality of SSM was decided by individual states. While not 'sanctified' (up to religions ... for those who cared) or 'state-certified' (for those who cared), millions of same-sex relationships existed during those two centuries. Most of them un-persecuted.

I don't see any prohibition in my reading of the Constitution, which I'm pretty sure was designed to protect individual liberties from the powers of the State. Of course, there have always been so-called 'citizens' fond of their own liberty to deprive others of theirs.

Every state, prior to the second half of the 20th century had sodomy laws - which made being in a homosexual relationship a felony, at best, and a death sentence, at worst.

Some states still have those laws on the books.

And I would hope that a respectable court would consider sexual acts to be acts of expression between parties, which is a protected right.

Well, the courts weren't respectable, and tended to see it as an abominable perversion, and a crime against nature and public decency.

At the end of the day, you are convicted by a jury of your peers, and if your peers are God-fearing 19th century Puritans, some of whom, among other things, keep human beings as chattel slaves, you are not going to have a good time.

It wasn't some rogue politicians passing unpopular laws. The law reflected the opinions of the times.

Free speech (expression is not in the Constitution) is not predicated on consent. If sex is a protected act of expression, than so is any kind of physical assault.

There’s definitely a consent factor to exercising your free speech rights. For example, you cannot loiter on my sidewalk at 2 AM expressing your free speech rights with a megaphone, since that would constitute harassment or breach of the peace, unless the neighborhood consented to hearing it.

Assault is a crime of violence; I think you’re looking for Battery as the comparison. Lack of consent is indeed one of the elements of Battery.

This. I recently read a book that explored the history of the Supreme Court and some of its major decisions. I walked away with one thing: the Constitution can mean virtually anything to anyone. It really does come down to the social winds of that particular time.

Well, the alternative is to be an originalist, trying to determine what a bunch of dead white guys in the 16th century -meant- when they wrote it, which is big in a number of conservative circles, and amongst a number of conservative justices.

Personally, I find that an unhelpful approach because the world, and yes, society, change. But it -can- be a helpful guiding star. Those who don't learn from history, etc; well, we have this document that was very intentionally trying to protect against a variety of evils that had been directly observed. Reintepreting it to today gives us value, in that it's a warning against behaviors that are detrimental to society. What exactly is the extent of freedom of speech? The document won't tell you that, or what a good extent of it should be, but it -does- tell you that -it's important-. The countries with the most restrictive speech, the ones where the wrong words routinely get you thrown in jail, where there is little to no free press...there is no document the government is predicated on saying that freedom of speech is important. Etc.

> Well, the alternative is to be an originalist, trying to determine what a bunch of dead white guys in the 16th century -meant- when they wrote it ... I find that an unhelpful approach because the world, and yes, society, change.

That's precisely why there are ways to amend the constitution. And we have been doing so for a long time - the most recent amendment is only 25 years old. That's the originalist way to dealing with the world and society changing, and the benefit of it is that it makes the change less arbitrary, and more democratic (since it's up to state legislatures, which are elected) than judicial fiat.

> [...] trying to determine what a bunch of dead white guys in the 16th century -meant- when they wrote it

You are two centuries too early. (I agree with your post overall.)

Right, 18th. Forgot it's the number ahead, not behind.

> All the way between 1776 and 2015 it was illegal - yet somehow, magically, in 2015, banning it became unconstitutional.

That's historically incorrect. Same sex marriage wasn't illegal in nearly any of the US until the 1970s. States including California and Florida enacted bans on same-sex marriage in the 1970s. And if you're talking about 1830 or such, the US was a liberal paradise (if you were white) compared to 1985 or 2005. There was no national ban or comprehensive state-based ban on same-sex marriage or eg drug consumption. The states heavily regulating marriage is a relatively recent phenomenon. The US used to have relatively few laws governing society in general, if you go back before the 1930s. The marijuana tax act was in 1937. Until the late 1970s we also didn't aggressively put so many people into prison. ~1970-2010 was an era of incredible regressiveness for the US on many social legal issues.

https://en.wikipedia.org/wiki/Sodomy_laws_in_the_United_Stat... seems to indicate otherwise.

A liberal paradise, except for the part where in some states, you could be put to death for being in a homosexual relationship. The other, more enlightened ones, mere considered it a felony, with a reward of a few years of hard labour for it.

Then I ask, why are we having such a tough time defending against illegal digital collection and searching by the government? Doesn't it seem like people care about their privacy from government? If public opinion isn't allowing our 4th amendment to be valued, then what are we doing wrong? How can we show the government that we do indeed want them to stop violating our privacy?

Do we have to riot in the streets? I thought that was the entire point of the American Revolution! We already fought for our rights, and yet people try telling me that we're losing them because we're not fighting anymore. Apparently it's entirely acceptable that when we become complacent, that the government can steamroll us for our ignorance?

I always found it weird how people starting thinking gay marriage should be legal, when in fact it should just be protected under the first amendment all along. It's almost like people don't understand their first amendment rights, and never thought to apply it to gay marriage.

I'm glad we figured it out in only 240 years!

But, what happens if we figure out that the rights we currently enjoy are, in fact, not protected by the constitution?

This hammer swings both ways. There's a big, nasty, vaguely-defined "unreasonable" word in "unreasonable search and seizure."

Who defines what is "unreasonable"? And what are the odds that their definition will agree with what HN thinks is "unreasonable"?

I can completely see a court, in 2021, argue with a straight face, that a ban on "unreasonable search and seizure" does not protect you against <Whatever invasion of privacy>.

Your post brings up some good points:

Precedent is important. Also, being aware of your rights and theirs precedents in history is important.

The Constitution is entirely written in a manner that grants citizens rights and restrains government power. Someday we might get so ignorant that the government decides pulling a fast one on citizens is possible, therefore they try. (See Patriot Act, NDAA,. etc.)

Eh, that's a pretty simplistic assessment. It wasn't the ability to say you were married that was under contention, as I understand it. It was whether homosexual couples should be conferred all the same privileges as heterosexual couples. Those privileges don't really fit under a "free speech" view.

> that's a pretty simplistic assessment

The bill of Rights was written simplistic for a reason, my friend. So regular folk could understand their rights without a lawyer.

This was my assessment, in steps:

1. Marriage exists because it's a religious ceremony for Christians.

2. The government got involved and gives religious marriage authorization, certification, and tax discounts. (unconstitutionally, see amendment one: government can make no law regarding religion or preventing The practice)

3. Any person can follow any religion in America (as long as it doesn't violate other human's rights.)

4. Create a new religion that allows gay marriage.

5. ???

6. Profit.

Allowing people to marry should and is protected under the first amendment. The Bill of Rights wasn't written in short, easy descriptions so that we could conflate meaning and exclude people of their rights. The truth is exactly opposite of that!

Marriage as a civil institution long predates any religious take on marriage, even for Christians.

waaat...

1. Marriage exists because it's a religious ceremony in pretty much every religion since man started talking.

2. The government got involved and provides a non-religious marriage.

3. this has nothing to do with religion

4. government marriage was defined and commonly understood to be a partnership between a man and a woman. this needed to be redefined, as any government thing does.

?? you are completely wrong 6. Profit for me. My taxes are a lot less after I got married (wife makes less), and will be even higher discounted if we have kids.

Getting married is not speech - it's a government status with limitations and rules, which needed to be updated and did. Getting married religiously is protected speech, and no one ever prevented anyone from doing that - man+man or man+dog. we had civil unions, and most had the same rights as marriage, for gay people. they didn't like that and redefined a dictionary and legal meaning of a word. who cares. let's redefine straight as inclusive of gay also just like a woman can now be born w/ a dick. I personally don't care. crazies do crazy stuff - effects me zero - I know my language and my world.

the truth, dear sir, is exactly opposite of what who wrote.

You can say whatever you like but asserting marriage rights required someone else who held power of some sort (which could be as simple as saying who could or could not visit a dying person in hospital or any of many other circumstances) to agree with you.

I consider stop-and-frisk to be in direct volition with the fourth amendment. Boarder control is a little different. I have the intention of extending these rights to all humans, so the boarder shouldn't change the rights of humans. Becoming aware of substance abuse (while say operating a vehicle) has potential for being "reasonable cause" for search... Though I'm not sure I'd entirely buy it.

I'm convinced that since citizens don't know their rights, that the government doesn't think we care about them, and uses that against us when we try defending them. It's the idea of... If you don't use them, you lose them.

>I'm convinced that since citizens don't know their rights, that the government doesn't think we care about them, and uses that against us when we try defending them. It's the idea of... If you don't use them, you lose them.

Alternatively, some people are willing to give up some rights for a feeling of security.

Or some people are willing to curtail some rights because it hurts people they don't like a lot more than it hurts them.

Or some people imagine gutting rights they don't regularly seem to need will never come back to bite them. People aren't going to defend things they don't care about.

Or some people seem to imagine that if a certain right doesn't seem to benefit them directly that it's not worthwhile to defend.

Or some people seem to think that maintaining the status quo is a right that they need to defend, no matter how many people are harmed by the inequality in the current landscape.

I mean you're not wrong. But that's certainly not the only issue issue causing the erosion of liberty.

The US is unusual in having Boarder control, Winter Sports resorts elsewhere don't place any restrictions on what kind of equipment you are allowed to use.

Yup, the Fourth Amendment's drug exception. Credited to Rehnquist and almost literally taught as such when I was a 1L.