One of the acts of George W. Bush that caused me to lose respect for him was his signing the McCain-Feingold bill, which he had campaigned against, while at the same time stating that he thought parts of it were probably unconstitutional.
Since he had sworn an oath to uphold the Constitution, it seemed, and seems, completely wrong for him to do that.
The only explanation I could think of at the time was this: He was punting to the courts. Rather like Nancy Pelosi telling us that we need to pass a law to find out what's in it, GWB was saying that he needed to sign a law to find out whether it was really unconstitutional or not. He thereby rendered at least partially meaningless his oath to uphold the Constitution, for if the Constitution is really so arcane and its relation to laws really so inscrutable that he has no responsibility to refrain from signing those that he thinks probably violate it, this evacuates one of the most significant ways in which the President might be expected to uphold the Constitution--namely, in his role in the passage or non-passage of legislation. In other words, GWB was engaging in a shockingly irresponsible act of constitutional abdication.
I believe that the doctrine that the Constitution means whatever the court says it means, however implausible the court's interpretation, encourages this very type of abdication on the part of the other two branches of government. If the court can come up with something completely unexpected, and if we must then adopt it as the meaning of the Constitution, then the legislative and executive branches really needn't try to decide for themselves whether some law or activity of their own is unconstitutional, unless SCOTUS has already expressly addressed that very law or activity.
Moreover, such abdication also encourages the other two branches to try to get away with whatever they can. If they have some hope that SCOTUS will let it fly, why bother with constitutionally motivated self-restraint?
This is relevant to the TSA outrages in ways that, at this point, I probably don't need to spell out: The TSA is getting away with what it can get away with. The courts have evidently suggested that the Fourth Amendment doesn't really apply to people who put their luggage down on the conveyor belt, only it sort of applies, but you have to "balance" the nature of the privacy interest compromised against the governmental interest. What this comes to is that maybe the courts will consider the grope-and-scan regime to go too far and to have become "unreasonable," and maybe they won't. We won't know until a suit climbs the ladder. Meanwhile, the government can do what it likes. There is no responsibility for the people in the bureaus or for the President's office to say, "Hey, wait a minute! We're supposed to uphold the Constitution. This sure as heck looks like it's way contrary to that assurance that the people will be 'secure in their persons' from unreasonable searches and seizures and that warrants will not be issued without probable cause. We can't do this! Stop!" Why should they? The Constitution is a black box. You can't just go citing the Fourth Amendment "in a vacuum" like that. You can't just go interpreting it for yourself like that! The courts have to interpret it. And they've left some wiggle room. Maybe this will be allowed. We might as well do it, because we can.
So the naked-scan machines are switched on, the pat-downs begin, and the Fourth Amendment is evacuated of any meaning that the ordinary American citizen can understand. But the talking heads don't care, and they chide us for the naivete of our outrage.
Sometimes even conservatives wonder what the problem is with judicial usurpation. Here's just one more problem: It leads to uncontrolled government in the other branches as well. Who would have thought it?