Just so you know, i'm not an originalist (one of the folks who believes that the "Founding Father's" original intent ought to trump all else.) I'm reasonably certain that Jefferson et al were right about many things and wrong about many others, and that it's pretty much irrelevant what they would have thought of what we're doing today.

I'm not sure what you mean by "in a legal sense". The people who write the laws believe that this practice is legal. The people who interpret the laws believe that this practice is legal. The people who enforce the laws believe that this practice is legal. How on earth are you coming to the conclusion that what they are doing is illegal? (I'm not arguing about whether or not it's right or just.)