I think the unstated background of this article is even more signifcant than its foreground (valuable as Ms. Lithwick's observations always are!).

The Founding generation's mistrust of 'government' such that they thought primarily in terms of how to cage the thing has been replaced by a sense that government's operatives are 'just folks' and are by and large well-intentioned, kind-hearted, and - frankly - noble. To which with respect and modesty I must respond: Oy. And perhaps: Ach.

One of the monstrous synergies of the post-WW2 era has been our (unacknowleded) adoption of German fascism's 'emergency' dynamics to override a jurisprudential process 'too slow' to meet the so-called crisis, coupled with the adolescent impatience-with-democratic-pol­itical-process of the Boomers in their heyday of '68 and with the industrialization of Advocacy (of this or that Identity each with its inevitable 'emergency') since the early ''70s.

While the National Security State first deployed these dynamics during the Cold War and then to defend the intensifying debacle in Vietnam, the National Nanny State - birthed in its multiform Identities in the 1970s by vote-desperate Democrats - did not repudiate the dynamics of Emergency but simply assumed that they could be 'baptized' by being deployed with all good intentions in the service of a good cause. As Goebbels noted, one is not interested in Truth but in results conformable to one's agenda. Hence it is unnerving these days to behold the spectacle of professors in American universities being labelled 'truthtellers' by other professors who firmly believe that 'facts don't matter'.

From a jurisprudential and Constitutional point of view, these Emergency Dynamics have proven toxic and perhaps lethal.

The assumption that the (self-declared) 'good' End justifies the less-than-good Means unites the seemingly people-oriented Left with the Nationalist (there hasn't been a Conservative on the hoof in Washington for quite some time) Right and with the military ethos itself: Win and impose your will. Hence the militarization of Law from the Left and under the guise of sensitivity to suffering and to prevent not only crime but pain. Of course, to deform Constitutional ethos and deploy the criminal law to eradicate 'pain and suffering' is to take on a job even bigger than turning foreign cultures into capitalist democracies overnight. And in the process of cultivating such tortured ground the chosen tool may well be not only worn-out but itself grossly deformed. As we are seeing.

In the domestic orgy following the fall of the USSR, this country introduced the government's right through police action to deprive a person of liberty and property merely on the say-so of another person (more simply known, in less enlightened times, as 'denunciation'). For selected classes of offense, jurisprudential safeguards such as clear and concise definitions and statutes of limitation were bent our of shape, 'special courts' were introduced, a dubious 'science' was embraced, and Registries of certain selected offenses were maintained, replete with a still-growing list of criminal and even civil disablements that include residency laws, employment restrictions, civil commitment, and a nascent form of 'internal passport' or 'yellow passport' imitative of the Soviet Union and the French Revolution (and - lest we forget - the Terror). And - like both the Russian and French Revolutions - all this is being carried out with the noblest of aspirations and intentions.

As this metastasizing legal deformity spread throughout our civil society and culture, it inevitably infected our foreign policy, where our efforts to quell 'emergencies' with trigger-quick government action has brought us to the brink of profound military and economic failure. Whether - as in Weimar - we suffer a fatal Constitutional and political failure remains to be seen, but it is an outcome that is certainly 'still on the table'. History's table, not ours.

The situation we face today has been not eight but at least forty years in the making, and if we trace it back to NSC-68 and the birth of the National Security State, then sixty years. We have had a government increasingly operating 'by Emergency response' and its concomitant emotions, and in the service of results and of Means rather than of Ends, for about half-a-century. Many citizens today have never known a government shaped by Constitutional parameters, but rather one that intrudes and expands opportunistically in response to every newly-embraced 'emergency'. While 'living Constitutionalism' seeks to make a virtue of this as 'critical legal theory' sought to make a virtue of the fact that there is no Law but only power, we have to consider that if there is no trellis, then the vines will create not a garden but a jungle.

Surely the legal profession must take note. A Constitutional deformity is a Constitutional deformity, no matter how urgent or heart-breaking or telegenic the 'crisis' that prompted it. To accept the gradual deformation of law and praxis over the course of years, such that each decade's core deformation is allowed to form the substrate of the next's, simply results in arriving - as did the German jurists in the late-'30s - at the point where Justice and Law could no longer be defended. Because the accrued deformities were now calcified in statute and in jurispraxis. And because the jurists themselves dared not any longer seek to define and thus recognize Justice (or the lack of it). At that point, discussions of the fine points of this or that statute and this or that case became a form of 'bad faith' with oneself and with one's people. And the darkness came.

Are we there yet?

You point a fundamentally assumption of the Bill of Rights, that, in essence, people are to be trusted and allowed to go about their business (1st Amendment, 2nd Amendment, 4th Amendment, by way of the States the 10th Amendment). Government bureaucracies don't work that way, and, in fact, look to expand their jurisdiction and budget, come what may. As the saying goes, when your a hammer, everything looks like a nail.

Child Protection Services of all states have the problem of wanting to do everything for 90% of the children out there. They are kept on a short-leash and low budget for a reason.