I think it is pure folly to look at the Constitution with libertarian-colored glasses. The Constitution pre-dates modern conceptions of libertarianism that place individual rights above all else. It was a document preoccupied with outlining a system of republican governments. Representative governance was the first principle, not individual rights. Individual rights are part of the scheme, but they are the exception to the general rule of power exercised by a representative government.

It was also a document that was a direct response to a previous document that was deemed to leave the federal government with insufficient powers in the areas of internal security and foreign relations. The failure of the federal government to put down an internal insurrection was a major motivation reason for the calling of the constitutional convention. That fact cannot be papered over or forgotten in the obscurity of history.

The NSA's interpretations are not inconsistent with its abiding by the law. For better or worse, the Constitution was designed to create an executive with extensive powers in the areas of war and security. It is not inconsistent with the Constitution for the NSA to assert that it does not need enabling Congressional legislation to function. At least, that's one perfectly reasonable interpretation of the Constitution.

Similarly, the 4th amendment has never applied to things that cross the border. One of the very first things that First Congress did was pass legislation creating a customs apparatus with warrantless border searches. It's not at all controversial, legally, for the NSA to assert that 4th amendment protections do not apply to communications that cross the border.

Ideological clean-up, aisle 7. Ideological clean-up, aisle 7.

The constitution is nothing but libertarian. Individuals surrender soveriegnty to the states, which form the union. Libertarians have never, and will never place individual rights above all else. They simply acknowledge that rights exist firstly with the individual, to be shared with the state as minimally-necessary to ensure social order and progress. That's they way they felt in 1787. That's the way the feel now. (For the most part) E-gads, man, the document begins "We the people"

The Constitution, in contrast, is an exercise in creating a representative government. Not one whose animating purpose is to protect the rights of the people, but one that has a general mandate to govern, within specific domains, and derives its legitimacy from the consent of the people.

It is illustrative to read Federalists Nos. 9-10. http://thomas.loc.gov/home/histdox/fed_09.html, http://thomas.loc.gov/home/histdox/fed_10.html. It's a defense by Madison and Hamilton of republican government, intended to counter critics who asserted that republican government must inevitably lead to anarchy. In Federalist No. 10, Madison addresses the question of how a republican government deals with factions that want to trample the rights of others:

"If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed."

Madison's answer to the latter question is not an appeal to rights enforced by courts, but to republicanism--the idea that elected officials will insulate public policy from the ephemeral whims of the majority:

"A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking."

The posture of Federalist Nos. 9-10 are clear: Hamilton and Madison are making the case for representative, republican government. They do consider the issue of individual rights, but in the context of explaining how rights can be nonetheless protected in a representative government. A libertarian government, at least as I understand it, approaches the question from the opposite direction: the protection of individual rights is the first and foremost concern, and sole purpose, of government.

I think if you understand Locke, natural law, some Hobbes, and the writings of Jefferson you get the picture well enough. No need to make this into a ink-blot test.

"...The posture of Federalist Nos. 9-10 are clear: Hamilton and Madison are making the case for representative, republican government...A libertarian government, at least as I understand it, approaches the question from the opposite direction: the protection of individual rights is the first and foremost concern, and sole purpose, of government..."

I think you're creating a false dichotomy here when there's only a natural tension. A representative, republican government is the most efficient and longest lasting chance the nation had of preserving individual rights. More to the point, though, Madison and Hamilton were describing and promoting their proposed structure, not political theory. The entire discussion was around whether their structure would work or not. (I note that the anti-federalists, like many libertarians throughout history, were labeled as having farcical and far-fetched ideas of dangers that never would actually occur. Those guys turned out to be more right than wrong.)

It was up to the ratifying bodies to align the constitution with what everybody already knew -- the ideals expressed in the DOI by Jefferson and penned by half a dozen philosophers during the Enlightenment. Hence the BOR.

I don't want to get into a long discussion of ratification. HN isn't the place for it. But little-l libertarians trace their lineage back to both sides of the constitutional debates, and back farther than that. I don't think you'll find anybody wearing a hat that says "libertarian" on it in 1787, but if we sat down and described these things that libertarians believe, I'd bet 95% of the founders would be on-board. There is no argument to be had here. There's no direct opposition, but there's always tension between personal freedom and structure. That's what the constitution was: one of the best and most effective compromises man has come up with so far. Libertarians believe in that compromise, and because so many of the founders were libertarians, we got a good one.

And if the NSA could confine themselves to foreign affairs and war, I expect a lot more people would be willing to give them a pass. But instead, what we're seeing instead is that information obtained under the auspices of "foreign affairs and war" is being shared and used both domestically, and internationally; and in cases that are clearly beyond the scope of "foreign affairs and war"

>It's not at all controversial, legally, for the NSA to assert that 4th amendment protections do not apply to communications that cross the border.

Maybe not, but it is definitely illegal for CBP to search electronic devices without reasonable suspicion; so as long as were here, we may have a good look at that as well.

My telephone, physical mail and electronic communications are not foreign affairs, and I have not been formally notified that the United States is at war with me. Nor have I been served with a warrant. And yet, it seems, they have a record of all of that.

On the contrary. It's pure folly to exercise authoritarian powers while claiming it's all for our own good:

"The means of defense against foreign danger historically have become the instruments of tyranny at home."

-James Madison, author of the Constitution.

The Constitution was created to clearly delineate powers of government while preserving the liberty of citizens. It's obviously failed in that regard.

As said earlier, the entire point is moot anyway as the NSA doesn't consider itself beholden to the law or the Constitution.

Your comment placement suggestions aren't helpful. It added nothing to the exchange of opinions.

Politically, there are many constitutional actions that our government quite rightly chooses not to take. (Though certainly, the constitutional aspects are extremely relevant in this particular case.)

Morally, it's easy to produce historical examples of morally repugnant but legal institutions. You can similarly argue that if the Constitution allows for secret law which permits the sort of mass surveillance the NSA has been revealed to undertake, then all this shows is that the Constitution is defective, not that these actions are in any way acceptable.

Especially if you tend to find yourself making arguments like this last one, it might sometimes be advantageous to try to achieve political goals by means outside of the court-focused means used by, for example, the ACLU. Leaks are one such method.

Well, whether or not an argument is sound (is never|shouldn't be) a matter of opinion. Soundness has nothing to do with whether the premises are true or not, it just means that if the premises are true, the conclusions necessarily follow. Whether the argument is _valid_ or not is a different matter.

I'm not commenting on the article or anything, I just thought I'd point that out.

"The real division is not between conservatives and revolutionaries but between authoritarians and libertarians." -George Orwell, 1948

You had mentioned "If one is in favor of government power over the Constitutional rights of individual citizens, then I guess it makes some kind of sense". That has to do with whether the argument is valid, not whether it is sound. That was the object of my comment.

This isn't just a technical incompleteness argument; the law is not written using a propositional calculus, but rather an imprecise semantic encoding (which we might refer to as "Legal English") that is subject to multiple interpretations.

So in the case of law it is possible/likely/inevitable that the argument is, by the use of natural language, itself ambiguous, so the soundness thereof is a vector state.

Or to put it in simpler terms: it is all a matter of opinion.