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MMMMMM
12-16-2003, 12:08 PM
This column by Thomas Sowell highlights what I think is a very important concept. As he puts it:

"One of the tragedies of our time, and a harbinger of future tragedies, is that court decisions at all levels have come to be judged by whether we agree or disagree with the policy that is upheld or overturned."

(Excerpt)

"Lawlessness usually conjures up images of a wild frontier or mobs in the streets. But the painful reality is that the supreme examples of lawlessness in our times are in the august and sedate chambers of the Supreme Court of the United States.

If you think the issue in the recent Supreme Court decision upholding campaign finance legislation is whether campaign finance reform is a good idea or a bad idea, then you have already surrendered the far more important and more fundamental idea of Constitutional government.

There is nothing in the Constitution of the United States which authorizes Congress to regulate what is said by whom, or under what conditions, in a political campaign. On the contrary, the Constitution says plainly, "Congress shall make no law" -- no law! -- "abridging the freedom of speech."

The merits or demerits of this particular law, restricting what you can say when, or how much money you can contribute to get your message out, are all beside the point. Just what part of "no law" don't the Supreme Court justices understand?

The sad -- indeed, tragic -- fact is that they understand completely. They just think that this legislation is a good idea and are not going to let the Constitution stand in their way...

...One of the tragedies of our time, and a harbinger of future tragedies, is that court decisions at all levels have come to be judged by whether we agree or disagree with the policy that is upheld or overturned.

Recent controversies over gay marriage have been a classic example of failing to see the woods for the trees. The most fundamental issue is not gay marriage. The most fundamental issue is who is to decide whether or not to legalize gay marriage -- and all the other decisions that define a free, self-governing people, as distinguished from people living under dictators in black robes.

The political left is all for judicial activism, because courts can impose much of the liberal agenda that most elected officials are afraid to impose, such as racial quotas, gay marriage and driving religious expression underground.

Bitter and ugly fights over judicial nominees are one consequence of liberals' heavy dependence on judges to impose policies which elected officials dare not impose. Decent, honorable and highly qualified people like California Justice Janice Rogers Brown are smeared and lied about because they insist that what the Constitution says still matters.

Sadly, the idea that judges are to make social policy, not just enforce the Constitution and the statutes, has spread even among some conservative constituencies. The National Rifle Association, for example, attacked Justice Brown for upholding California's assault weapons ban.

The issue was not whether Justice Brown personally favored this ban or not. The issue was whether the state legislature had the right to impose such a ban. Since there is no right to bear arms in the California Constitution, and state judges are bound by federal courts' interpretation of that right in the federal Constitution, this decision was the only one to make.

We can't vote for federal judges but we can vote for those who appoint them and those who confirm them. We need to remember judges -- and the Constitution -- when we are in that voting booth, if we want our votes to continue to mean something." (end excerpt)

http://www.townhall.com/columnists/thomassowell/ts20031216.shtml


I think Sowell makes an extremely important point. There are good reasons why legislators make laws, and judges uphold those laws (and uphold the Constitution, our most important framework of laws). Judges are not constitutionally empowered to make laws. That division is part of the very basis of our system of government with its 3 branches--legislative, judicial, and executive--which separation of powers is essential to the checks and balances which protect our most basic rights and freedoms. When judges take law-making into their own hands through judicial activism, they undermine the very basis of our free society, regardless of whether the outcome of that activism turns out to be good or bad with regard the particular issue at hand.

elwoodblues
12-16-2003, 12:37 PM
Do you really think this article isn't a prime example of the very "tragedy of our time" that he denounces?

The article begins by stating that "the painful reality is that the supreme examples of lawlessness in our times are in the august and sedate chambers of the Supreme Court of the United States."

It then misleads readers into thinking that the US Supreme Court made a recent decision on gay marriage. This is simply false. The recent gay marriage decision was decided by a State Supreme Court interpreting a State Constitution. "The most fundamental issue is not gay marriage. The most fundamental issue is who is to decide whether or not to legalize gay marriage" --- and as good conservatives know, the fundamental issue is that this is a state issue, not a federal one. The gay marriage decision is a great (small federal government) example of the system working --- the state decided/interpreted the state constitution.

[ QUOTE ]
The political left is all for judicial activism, because courts can impose much of the liberal agenda that most elected officials are afraid to impose, such as racial quotas, gay marriage and driving religious expression underground.

[/ QUOTE ]
Again, this is simply a specious argument. The writer wants you to believe that the courts are "imposing" these movements. The facts bear out otherwise:

Racial Quotas --- existed as a matter of policy in schools, workplaces, etc. The court has never required quotas. In fact, the court has specifically rejected the use of "quotas" despite what the popular belief is.

Gay Marriage: Again, the court was not making up law out of whole-cloth as the article suggests, it was interpreting the Massachusetts constitution, which provides (among other things) that:

[ QUOTE ]
"All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."


[/ QUOTE ]

[ QUOTE ]
Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for the profit, honor, or private interest of any one man, family or class of men

[/ QUOTE ]

In fact, the Massachusetts Constitution gives the court great power in interpreting laws:

[ QUOTE ]
full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Search Term Begin constitution Search Term End , as they shall judge to be for the good and welfare of this Commonwealth.

[/ QUOTE ]

Driving Religious Expression Underground: The court has done nothing of the sort (and the article provides absolutely not justification for this assertion). The court has not stated anything about the private expression of religious faith, nor the public expression of that faith insofar as "public" means "out in public" as opposed to an act of the state. Part of the court's (US Supreme Court) charter is to interpret the language of the constitution. Some argue that the language of the constitution is absolutely clear, I think there are lots of gray areas. One of the gray areas deals with the establishment of religion and the extent to which the state's support of religious activity "establishes" the religion. The court is interpreting that meaning. Apparently the writer just disagrees with the court's interpretation.

~elwood

Kurn, son of Mogh
12-16-2003, 12:50 PM
I think Sowell makes an extremely important point. There are good reasons why legislators make laws, and judges uphold those laws

Judges aren't just there to "uphold" laws. They are there to determine whether or not those laws conform to the guidelines of the constitution. Sometimes the Constitution is vague.

MMMMMM
12-16-2003, 01:16 PM
So you think it is OK that the US Supreme Court can forbid you from taking out an ad expressing your views when it is close to election time?

MMMMMM
12-16-2003, 01:21 PM
Of course. And I think the Constitution is pretty damn clear when it says: "Congress shall make no law abridging the freedom of speech." Yet the majority of the US Supreme Court seems to think other concerns are more important than that VERY clear sentence. Since Congress cannot make any such law, the Court apparently will. You can no longer freely express your opinions immediately prior to an election. If that doesn't give even the most liberal leftist grounds for worry, nothing will.

nicky g
12-16-2003, 01:22 PM
Sure you can; just not through advertising.

adios
12-16-2003, 01:23 PM
Much talk about a Constitutional Amendment basically banning gay marriage. I don't think that will get any more action than lip service (thankfully IMO).

Democrat Proposes Anti-Gay Marriage Constitutional Amendment (http://www.lcrga.com/archive/200205151840.shtml)

Democrat Proposes Anti-Gay Marriage Constitutional Amendment
Mississippi Democrat "Lead Sponsor" On Measure Not Expected to Advance

May 15, 2002


(WASHINGTON) A coalition of largely African American leaders joined a Mississippi Democratic Member of Congress today to announce the introduction of a constitutional amendment to ban same-sex marriage.

Congressman Ronnie Shows (D-MS) joined leaders of the "Alliance for Marriage" at a Capitol Hill press conference to announce the introduction at its lead sponsor. The group boasted of "strong bi-partisan support" for the measure, however it was announced that the measure has six co-sponsors -- three Democrats and three Republicans.

In addition to Shows, the measure is co-sponsored by Congressman Ralph Hall (D-TX), Congressman David Phelphs (D-IL), Congresswoman Sue Myrick (R-NC), Congresswoman Jo Ann Davis (R-VA) and Congressman Chris Cannon (R-UT).

"This measure should not be taken seriously by Members of Congress of either party," said Rich Tafel, executive director of Log Cabin Republicans. "It is unlikely to advance in this or any Congress, nor should it be allowed to advance. It is merely a fundraising ploy by people on the extreme end of the political spectrum at the expense of more serious and important issues facing our nation."

A constitutional amendment requires 2/3 passage in both the House and Senate, and must be ratified by 3/4 of the states, an extremely rare event, and unlikely prospect for this measure. Democrats and Republicans expressed opposition to it in 2001 when the "Alliance for Marriage" began an internet campaign to promote its efforts.

On this site I found what I thought was a good counter arguement to such an amendment.

Log Cabin Denounces Federal Marriage Amendment


November 26, 2003


(Washington) Log Cabin Republicans denounce the introduction of the Federal Marriage Amendment in the United States Senate on Tuesday.

"Across America families are gathering to celebrate Thanksgiving, while on Capital Hill some members of the United States Senate conspire to marginalize part of the American family," said Log Cabin Republican executive director Patrick Guerriero.

On Tuesday, a Constitutional amendment that would codify discrimination against tax-paying gay and lesbian Americans was introduced in the United States Senate by Republican Senators Allard (CO), Sessions (AL) and Brownback (KS).

"The Constitution is a masterpiece of liberty and freedom. Corrupting this precious document to score cheap political points is frankly obscene. Writing discrimination into the Constitution is an affront to everything our founding fathers stood for," continued Guerriero.

"True conservatives would never alter our Constitution for political purposes. As conservative Republicans, Log Cabin members across our nation are shocked that these senators would make such a brazen attack on states' rights. On his own web site, Senator Allard brags about his support of state's rights, yet when it comes to discriminating against loving gay and lesbian families, he suddenly feels compelled to have sweeping federal action. Senator Allard's attack on gay and lesbian families is disingenuous and intellectually inconsistent," added Mark Mead, Log Cabin director of public affairs.

"The American public wants our elected representatives to work with President Bush to win the war on terror, not to wage a culture war. They should maintain their focus on expanding our economic recovery, creating more jobs and supporting our armed forces, not permanently marring our sacred Constitution," said Guerriero.

And who are Log Cabin Republicans?

Log Cabin Republicans is the nation's largest gay and lesbian Republican organization, with state and local chapters nationwide, a full-time national office and a federal political action committee.

Imagine that Gay and Lesbian Republicans who endorse conservative ideals.

MMMMMM
12-16-2003, 01:25 PM
nicky,

That is a restriction on the freedom of speech. Cut and dried.

elwoodblues
12-16-2003, 01:28 PM
Not to split hairs, but you can try to blame the Supreme Court all you want, but it was Congress that created the law.

I haven't yet read the decision, so I don't know the legal basis of the opinion. I'll try to get to it later this week with a more informed response.

nicky g
12-16-2003, 01:51 PM
Perhaps. There are many restrictions on advertising. There are also alternatives - eg providing all serious candidates with a platform instead, wich allows them all freedom of speech. Creating a market in political information effectively restricts poorer candidates' freedom of speech.

Kurn, son of Mogh
12-16-2003, 01:54 PM
I agree with MMMMM here. Commercial speech should be protected equally with political speech.

As for campaign contributions, as long as you can cast a vote, you should be able to give any amount of money to any candidate under full disclosure, i.e. *all* contributions will be a matter of public record.

No entity that can't vote (foreign nationals, Corporations, Labor Unions) should be permitted to give one cent.

Kurn, son of Mogh
12-16-2003, 01:59 PM
I prefer the libertarian solution. De-legalize marriage. In other words, take the government out of marriage altogether and make it simply a religious ceremony.

For non-religious people who wish to codify a relationship, create a separate civil union to which inheres all the contractual rights and responsibilities. Since the government cannot dent two individuals the right to contract based upon sex, that solves that problem.

adios
12-16-2003, 03:20 PM
I like the libertarian position as well.

andyfox
12-16-2003, 03:43 PM
The Constitution is unclear in many areas. What exactly "abridges" freedom of speech? What if one candidate bought up all the available air time in all the media? Would this abridge the speech of his opponents?

Judicial activism (both left and right: the conseravative Rehnquist court has been perhaps the most activist in history) is inevitable given the way our Constitution is written. Thus judges, in a very real sense, do indeed make law.

Kurn, son of Mogh
12-16-2003, 04:12 PM
Judicial activism (both left and right: the conseravative Rehnquist court has been perhaps the most activist in history) is inevitable given the way our Constitution is written.

Just because something seems inevitable does not mean it should be free from restraint.

Thus judges, in a very real sense, do indeed make law.

Which is clearly wrong. Congress makes laws. The courts rule on the constitutionality of those laws. When the Court overrules Congress, there exists an amendment process by which the couts can be overruled.

MMMMMM
12-16-2003, 04:20 PM
So you can say what you want to a few friends but you can't put up a sign and shout it in the village square...or you can shout it in the village square but you can't tell the masses--because doing so is unfair to those who don't have the money to buy TV or radio time. You can express your opinion in the village square but you can't reach the masses unless you get invited on a news or talk show--you can't even spend your own money to get your opinion out. Wow we are really moving fast to a totalitarian society. Maybe brad is right.

Since when is 'fairness' more important than freedom of speech--in the USA? I know Europe and Canada are already well down that road leading to tyranny; they've passed laws against 'hate speech.'

MMMMMM
12-16-2003, 04:26 PM
"What if one candidate bought up all the available air time in all the media?"

Couldn't happen. That's also an example of why we need free markets.

sam h
12-16-2003, 05:17 PM
On one level, Sowell is of course right: courts are supposed to interpret laws and rule on whether they conform to constitutional guidelines, not make new laws. And judicial activism is a real concern.

On another level, he's hopelessly naive. Court rulings, especially on constitutional issues, are very complex. They usually involve balancing competing rights, not just judging whether a law abridges any given right. There is no absolute guarantee to freedom of speech. Different rules apply if you are in public or private forums. Speech rights also depend upon the medium of expression (dropping f-bombs on the radio for instance is a no-no). The definition of "speech" is also highly contested - obviously, the conservatives on the court didn't think burning the flag was a speech act when they tried to make it illegal for instance. So given that the court has always - intelligently, I might add - understood that speech rights have to be understood in context, it is not at all out of the question to say that the speech right of a billionaire to donate millions of dollars to a politician should be understood in context of the general landscape of American democracy and balanced against other valid interests.

The larger point is that there is no agreed upon guideline for the act of constitutional interpretation. Some people say you should deduce the original intent of the founding fathers. Others say this is crap, all you have is the words and you need to just work with the text. Still others point out that the words - say "cruel and unusal punishment" - take on different meanings over time as the world changes and you need to factor that in as well. And a fourth camp says that the constitution itself was supposed to be somewhat flexible, a set of guidelines to be adapted to the contingencies of the present. One can and should argue which approach is best. But you will never be able to conclusively prove that one is better or more proper than another. And the approach you take will give you different results.

MMMMMM
12-16-2003, 05:27 PM
The more complicated you make it, the more opportunity there is for BS. The simpler the better. And the text of that Amendment is as clear as clear can be. And of course there should be no laws restricting using the f-word on radio. Whether a private business chooses to restrict its use is a different matter.

andyfox
12-16-2003, 05:44 PM
What about yelling "fire" in a crowded theater?

MMMMMM
12-16-2003, 05:52 PM
Shouting "fire!" in a crowded theater (when there is no fire) is not freedom of expression, it's criminal mischief and endangerment. And you're grasping at straws.

elwoodblues
12-16-2003, 06:00 PM
[ QUOTE ]
Thus judges, in a very real sense, do indeed make law.

Which is clearly wrong. Congress makes laws. The courts rule on the constitutionality of those laws. When the Court overrules Congress, there exists an amendment process by which the couts can be overruled.

[/ QUOTE ]

You ignore hundreds of years of Common law. If you can find me the negligence statute (the one that defines the elements of a cause of action) in Minnesota I'll send you $50. Common law is by definition judge-made law and has been an fully entrenched in our system since its inception (certainly more so on the state side than the federal side, but there exists a body of federal common-law as well).

andyfox
12-16-2003, 06:04 PM
I assume you're saying there can be abridgement of speech is that speech entails mischief or endangerment.

I'm not grasping at straws, the courts have said that yelling "fire" in a crowded theater is not afforded protection by the freedom of speech amendment. If there can be no abridgment, how can saying something be illegal?

andyfox
12-16-2003, 06:06 PM
"I assume you're saying there can be abridgement of speech is that speech entails mischief or endangerment."

Seventh word from the end should be "if," not "is."

andyfox
12-16-2003, 06:09 PM
I'm not saying whether it's wrong or right, I'm saying it's inevitable, given the way the Constitution is written, and maybe even given the limitaitons of language, that judges make law just as surely as legislatures do. Because they decide what the law means. And because times change. Is internet publication "speech?"

elwoodblues
12-16-2003, 06:14 PM
It's only criminal mischief because it has been defined as such (as the campaign finance law has defined campaigns ads in a new way). If the First Amendment were as cut and dry as you suggest, we wouldn't have any of the following:
Restrictions on pornography/obscenity
The FCC
Defamation law
Punishment for perjury
Laws against terroristic threats
Laws against assault (as assault does not involve physical contact, battery does)
Fraud
False Advertising
Deceptive Business Practices
Accurate food and drug labelling


Perhaps the response to many of these (especially those dealing with business) is that the free market will work to fix those problems. Nonetheless, I think it is a bit naive to suggest that the Free Speech clause of the First Amendment is as simple as you suggest. We have over two hundred years of jurisprudence that suggests otherwise.

MMMMMM
12-16-2003, 06:47 PM
Ask a six-year-old, she should be able to tell the difference.

I don't think you're arguing the point really but rather offering sophistry.

sam h
12-16-2003, 07:27 PM
[ QUOTE ]
The simpler the better. And the text of that Amendment is as clear as clear can be.

[/ QUOTE ]

Is it? How would you define a speech act? Is blasting your radio on the subway a speech act? How about putting up a hundred yard high billboard in front of your house advertising for your porn site? How about giving out detailed recommendations on the Internet about the best way to kill the president? How about writing a computer program to break encryption on DVDs?

There never ever ever has been total freedom of speech in the United States, sometimes for good reason. It has always been contextual. To deny this is to live in a dreamworld.

Basically it comes down to this: which is more important to you - to be right or to be righteous? This has nothing to do with political beliefs as there are plenty of people in both camps across the political spectrum. But if you choose the former, then you have to accept that the world is a complex place. If you choose the latter, at least you've got plenty of company.

MMMMMM
12-16-2003, 07:41 PM
None of the examples you or andy have given can compare with the act of expressing your views peacefully through advertising you have paid for. There is nothing wrong with that. There is however a lot wrong with shouting "fire!" in a crowded theater or giving out information on how to assassinate the President or giving out information on how to make, say, a nuclear bomb or ricin.

You and andy are carrying the "contextual" argument to extremes or absurdity. Denying an individual the right to express his views, at his own cost, and without forcing anyone to listen to him, is against the Bill of Rights. And I'm not concerned about whether I am "right" or "righteous": I'm concerned about whether you and I are free: to speak our minds. And you should be too.

sam h
12-16-2003, 08:19 PM
[ QUOTE ]
Denying an individual the right to express his views, at his own cost, and without forcing anyone to listen to him, is against the Bill of Rights.

[/ QUOTE ]

Putting up a hundred yard tall billboard in front of your house advertising for a porn site is a way of peacefully expressing your views. Is that wrong? How about organizing a few thousand people and marching down a crowded avenue without notifying the city?

The court has put restrictions on all these things because they've deemed that 1) there are other public interests involved and speech rights need to be balanced against these interests and 2) other avenues for the expression of the speech in question exist.

If we have a public interest in campaigns not being sold off to the highest bidder, then maybe the speech rights of people donating money to candidates and parties should be curtailed somewhat by campaign finance legislation. After all, thse people would still be able to donate money or push issues. Just not appreciably more than the less fortunate.

If we have an interest in speech truly working like a marketplace of ideas, then perhaps it is necessary to regulate this marketplace like we do other more conventional markets - by taking some measures to ensure that vigorous competition is not hampered by a few major players with major resource advantages. To say that these types of regulation - aimed specifically to level the playing field - leave the rich unfree to speak their minds is like saying that monopoly laws leave dominant corporate players within a sector unfree to manipulate prices.

I am also deeply concerned with the extent to which we are free. But I am also concerned with the extent to which we are equal. And I believe that sometimes there is a tension between the two that needs to be mediated by government intervention.

ACPlayer
12-16-2003, 08:49 PM
Seems to me he is saying in your first excerpt that court decisons should not be judged by our agreeing or disagreeing with them. Then in the article he proceeds to judge a few cases he disagrees with. There is no question but that the court decisions are going to be applauded by those who agree with the policies being judged and condemned by those who disagree with the policy.

He should present his case cogently and his opinion on the matters strongly rather than shrouding himself with the pointless piousness of the wronged.

I personally agreed with the court on the campaign finance laws, the U of M case. But then I and this conservative court generally are on the same page.

MMMMMM
12-16-2003, 09:15 PM
Just because not everyone can avail themselves of an opportunity does not mean that others should have that opportunity curtailed--more especially not if it requires taking away one of our most basic and protected rights.

Our constitutionally protected rights are the most precious thing--not some arbitrarily defined concept of "fairness."

MMMMMM
12-16-2003, 09:18 PM
"There is no question but that the court decisions are going to be applauded by those who agree with the policies being judged and condemned by those who disagree with the policy."

And this is precisely the problem. This problem becomes more acute and more pernicious when judges adopt a similar attitude.

sam h
12-17-2003, 12:15 AM
I don't think we're going to agree on this one MMMMMM. Just two fundamentally different ways of viewing the world. But good debating with you. I'm sure we'll butt heads again on some other thread. /images/graemlins/smirk.gif

Utah
12-17-2003, 01:18 AM
I don't believe that the first amendment says anything about dangerous speech, criminal speech, or mischievous speech. Nor does it say anything about expression.

As you so forcefully stated --no law!-- abridging the freedom of speech

If you are a strict constructionist, you can't say, "yeah but...." In this case, you are opening up a huge can of worms and you are sliding quickly down a slippery slope. What is criminal, dangerous, etc? What if free speech (e.g., pornography) leads to longer term dangerous consequences (increased violence towards women or a group)? Who decides?

Under your scenario, the "Clear and Present Danger" rule from Justice Oliver Wendell Holmes was a terrible decision, a gross violation of constitutional law, and the worse kind of judical activism.

I don't think that finding the "clear and present danger" clause in gross violation of the constitution is a bad thing. I am just trying to find consistency in your argument.

Chris Alger
12-17-2003, 01:20 AM
1. "There is nothing in the Constitution of the United States which authorizes Congress to regulate" political campaign speech, says Sowell;

2. Nor is there anything in the Constitution protecting campaign finance;

3. Yet Courts should make a law that defines campaign finance as "speech" under the First Amendment; therefore

3. Courts should strike down duly enacted campaign finance regulation even though

4. There is also nothing in the Constitution authorizing courts to stike down acts of any legislature. OTOH,

5. Courts should refrain from striking down conservative laws against things like gay marriage even if courts believe they infringe on constitional protections because

6. This is "judicial activism," the intolerable practice of judges making law and usurping the power and perogatives of elected representatives.

The power of judicial review of Congressional statutes is a judge-made law, used sparingly (twice prior to the Civil War, and the second was Dred Scott). Usually, conservatives bellyache about judicial activism when one of their regulations gets the axe, and complain about judicial complaisance when regulating one of their freedoms gets upheld. But rately do you see both in the same column, much less so stupidly and incoherently as this one.

MMMMMM
12-17-2003, 01:31 AM
Well...I guess the definition and hair-splitting game can be pursued indefinitely a la andyfox's argument...but I'll also bet a 6-year-old would have the common sense to know that telling someone they can't say something someone else doesn't have the same chance to say is NOT the same as telling someone they can't shout "fire!" in a crowded theater, or the same as pulling a false fire alarm at school, or the same as calling an ambulance as a joke.

MMMMMM
12-17-2003, 01:34 AM
I didn't quite follow your entire argument, Chris, but this is what I believe:

If I want to blow my life savings taking out a political ad, I should be able to do so, period. So should you. And no courts should be able to tell us we can't.

Also, I do think that judicial activism is contrary to the spirit and the letter of the Constitution.

andyfox
12-17-2003, 02:41 AM
Where do you get that my argument is hairsplitting? I didn't make up an argument to hairsplit about yelling fire in a crowded theater. Justice Holmes did.

andyfox
12-17-2003, 02:52 AM
Six year olds see things in black and white. You usually see things in black and white.

You're both usually wrong. The world is not black and white, but various shades of gray.

My point is that the Constitution is not clear. We've had this discussion before. Its meaning requires judicial interpretation. You or I may not agree with some of those interpreations, but it is inevitable that different people will read unclear writing in different ways. According to Madison, this lack of precision was intentional, because A) different factions at the Constitutional Convention could not agree on specific language; and B) it was foreseen that different generations would have different requirements necessitating new interpretations that fit the times.

ACPlayer
12-17-2003, 07:59 AM
Back to my critique of Sowell's statement regarding evaluating judgements.

Judicial activism could be defined as a judgement with which you dont agree. If you agree with the underlying policy then the judge is fair, if you dont agree it is judicial activism.

This seems to be a tactic of the fringe right wing -- aka the looney -- crowd (Rush, Coulter et al). Find a label to apply to anything you dont like, the label is then made the pejorative and a catch-all for all, in this case decisions, they dont agree with.

Kurn, son of Mogh
12-17-2003, 10:12 AM
Nor is there anything in the Constitution protecting campaign finance;

True, but it has been accepted that Amendment I protects freedom of expression. I'd say how you dispose of your money constitutes expression.

Courts should refrain from striking down conservative laws against things like gay marriage even if courts believe they infringe on constitional protections because

I agree. The Defense of Marriage Act would appear unconstitutional based upon Article IV, section 2 which states "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

The DOMA however says states can refuse to recognize same-sex marriages legally performed in other states. I believe the Constitution says they can't refuse that recognition.

elwoodblues
12-17-2003, 10:44 AM
Why are you so mad at the judiciary and not the Congress on this one? The judiciary didn't make the law, congress did. It is easier to blame the "liberal" justices for their dastardly interpretation of the Constitution than blame the Congress (which is conservative) who enacted the law.

Chris Alger
12-17-2003, 11:35 AM
"I'd say how you dispose of your money constitutes expression."

Only sometimes. Spending money, by itself, is not the sort of expression protected by the first amendment. Indeed, "commercial speech," like defamation and obscenity, are subject to extensive regulation.

Spending money on a political campaign, however, is symbolic "politcal speech," the importance of which triggers first amendment protection. Political campaigns are nevertheless an activity subject to extensive regulation because of the public interest and the inherent right of legislators to determine the manner by which they are elected. The result is a need to delicately balance the public interest and individual rights of expression. The right-wing critique that the first amendment precludes campaign finance regulation therefore oversimplifies the issue and distorts the history of first amendment jurisprudence.

I'm not sure if the Privileges and Immunities Clause Applies to DOMA (you would think it would, but if I recall right the meaning of that clause is limited). The "full faith and credit" clause, however, would seem to kill it too.

Chris Alger
12-17-2003, 11:38 AM
I'm simply pointing out the obvious fact that Sowell is bothered by "judicial activism" when courts strike down laws he likes and bothered by "judicial restraint" when they uphold laws he doesn't like. It's a silly, unprincipled critique.

As for your political ad, I think you'll agree that whether you can do this depends on what the ad says. Certainly you can imagine the content of certain ads being subject to regulation if not outright ban.

Kurn, son of Mogh
12-17-2003, 11:43 AM
Indeed, "commercial speech," like defamation and obscenity, are subject to extensive regulation.

I personally think the FCC does more to restrict debate and the free exchange of ideas than to "protect" us. But that's just my libertarian bent talking.

I also don't think having laws against defamation and fraud constitute raping the Constitution, either, so I guess we more or less agree on this one.

elwoodblues
12-17-2003, 11:54 AM
I forgot to add:
trademark protection also would violate the "plain language" of the First amendment (copyrights and patents do not because those are specificall referenced in art 1 § 8 cl. 8 of the constitution).

John Cole
12-17-2003, 12:21 PM
M,

I hope you enjoy this essay.

http://www.theatlantic.com/issues/89jan/dershowitz.htm

elwoodblues
12-17-2003, 01:13 PM
The Dershowitz article is interesting and I agree with most of what he said. Unfortunately, it doesn't really apply to the conversation at hand. The whold discussion about shouting "fire" in this thread was not used as an analogy to campaign finance reform, rather it was in response to a post suggestion that the First Amendment is clear in it's prohibition of abridgements of speech.
[ QUOTE ]
The more complicated you make it, the more opportunity there is for BS. The simpler the better. And the text of that Amendment is as clear as clear can be.

[/ QUOTE ]

Andy used the "fire" example to indicate that even at a very basic level, the First Amendment might not be as clear as suggested. A simple single word might be unprotected speech depending on the context in which it was spoken. Assuming that we can agree to that, we need courts to define (because the language of the Constitution does not) where to draw the line. You might disagree with where the line is drawn, but most agree that it is the charter of the court to draw that line---MMMMMMM (how many m's was that?) seems to disagree with the position that there is any gray area.

MMMMMM
12-17-2003, 01:44 PM
I was not aware that Congress made the law; if so, then both Congress and the judiciary may be to blame.

andyfox
12-17-2003, 01:44 PM
Thanks for the link. Now M can see that it was not I who invented the fire-in-a-crowded theater argument.

MMMMMM
12-17-2003, 01:51 PM
"Judicial activism could be defined as a judgement with which you dont agree."

No, judicial activism could be defined as justices making rulings in line with which their own personal preferences on a particular issue, but which are in contradiction of the law--more specifically in contradiction with the US Constitution/Bill of Rights.

MMMMMM
12-17-2003, 02:03 PM
Er, sorry, andy...I think I may have mixed up your post with someone else's (either actually or conceptually) at the time I was reading and responding to posts.

MMMMMM
12-17-2003, 02:26 PM
andy, I am surprised that you would think I usually see things in black and white. I think I often see far more shades of gray than you or Chris or Cyrus do, because I often see matters of degree where you sometimes tend to overlook them (I am basing this on long history of our posts--how many times have I asked something like, "doesn't degree mean anything to you in this instance?"). I then weigh these matters of degree (shades of gray) in the entire argument. That may lead to a conclusion different than yours, or to a fairly definite conclusion. But that is a far cry from seeing things in terms of black and white.

A perfect example: You state "The Constitution is not clear." I state "Parts of the Constitution are clear and parts of the Constitution are not clear." Here I am, for the sake of convenience, presuming that reasonable and functional clarity is sufficient to be termed "clarity" and we are not requiringing mathematical-type precision, but are rather operating under the common constraints of language.

I submit that, using your yardstick, you could endeavor to make virtually ANY statement unclear, whether it is in the Constitution or no (excluding the very most simplistic statements such as "The cat saw the mouse" or mathematical statements). But here you seem to err because you do not sufficiently acknowledge the importance of degree. You speak as if a tiny unclarity, say roughly equivalent to 1-5%, is equivalent to a large unclarity. So let me too rephrase my statement: "Some parts of the Constitution are largely very clear, and clear enough to interpret without undue confusion as to the meaning or intent--while other parts are not so clear." But you take the argument to a black-and-white sort of level by saying "The Constitution is unclear" and using this as a lever to support your view that virtually everything in the Constitution should be able to be interpreted in a changing manner according to the times. My view is that some parts should be so interpreted and some parts shouldn't--and, else why even have a Constitution at all, if some parts of the framework are not for the purpose of providing a solid and immutable foundation (with the exception of the built-in flexibility granted by the Amendment process) ?

MMMMMM
12-17-2003, 02:34 PM
elwood,

All the forbidden forms of speech ("fire!" in a crowded theater, revealing national security secrets, making a bomb threat, etc.) are deemed dangerous or harmful in some manner--they are considered to actually be capable of harming or endangering someone (in some cases such as obscenity, perhaps wrongly so). However, merely expressing one's opinion is not in the same category with these things. There is no inherent harm to others involved or implied in expressing one's opinion. Therefore it seems pretty clear to me that the right to do so should be protected.

ACPlayer
12-17-2003, 04:39 PM
Given almost every decision is a close one with good arguments on both sides and both sides claim to have the consitution on their side -- your statement is a hollow one.

The differences betwenn the two sides of most major cases is like 51-49 rather than a big difference. Judicial activism is like liberal, feminist, racial quotas -- all codes invented by the looney fringe to make it easy for the simple minded to get worked up about these issues.

I doubt if there are many decisions that violate the consitution except in the eyes of the losing side.

MMMMMM
12-17-2003, 05:02 PM
So you think all split judicial decisions can't be far wrong. Well that's a rather bold and probably unsupportable claim.

Here is what Thomas Jefferson had to say about the matter in general:

"... the opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

So the Massachusetts Supreme Court, in ordering the Legislature to make legal gay marriage, is doing precisely what Jefferson forewarned about.

Only fools broach no fear of tyranny.

Utah
12-17-2003, 05:03 PM
The language in the first amendment is perfectly clear and there is no room for interpetation, as 6M so forcefully, and correctly, stated in the first post of this thread.

The language says, "Congress shall make no law" -- no law! -- "abridging the freedom of speech {emphasis by 6M}

It does not say, "Congress shall make no law abridging the freedom of speech, unless there is a clear and present danger" (or whatever similar variation you can think of)

Certainly, it is morally wrong to yell fire in a crowded theater. However, the first amendment clearly allows it and any attempt to reign in the first amendment by the supreme court smells of the worst kind of judicial activism. This includes the Holmes decision (which is fascinating in that the slippery slope of eroding free speech started immediately when the court reinterpeted the amendment).

A simple single word might be unprotected speech depending on the context in which it was spoken. Assuming that we can agree to that

6M might agree with you but the first amendment does not.

we need courts to define (because the language of the Constitution does not) where to draw the line. You might disagree with where the line is drawn, but most agree that it is the charter of the court to draw that line---

This is where you jump the shark. You think the phrase "No law" is ambiguous?

The supreme court can try and figure out what the writers meant when they wrote the law, but they have no business drawing lines anywhere.

That is the role of the legislature
If we want the first amendment to include a "clear and present danger" exception, then the legislature should do that through the amendment process. The supreme court has zero business touching it.

This is at the heart of the discrepancy in 6M's argument. He doesn't like it in the campaign finance ruling but likes it in the "clear and present danger" exception that was created out of whole cloth.

MMMMMM
12-17-2003, 05:11 PM
I did not realize that the argument extended fully as far as you explain it. I suspect you may be correct, but this will require further consideration. I shall take the matter under advisement for the present;-)

Utah
12-17-2003, 05:17 PM
Indeed, "commercial speech," like defamation and obscenity, are subject to extensive regulation.


But should they be? I don't see anything in the first amendment that would limit or control this type of speech. Aren't we boys told no means no?

The result is a need to delicately balance the public interest and individual rights of expression.

I have read the first amendment many times and I don't see this balancing act expressed or insinuated anywhere. The balance is a good concept, however it should be written into the law through the legislative channel, not through the judiciary.

distorts the history of first amendment jurisprudence

It doesn't distort it, it just disagrees with it. The court has shown to be anything but infallible.

elwoodblues
12-17-2003, 05:18 PM
Fair enough --- it seems like your position is that speech that is dangerous or harmful can be regulated. This seems to include economic harm as well (e.g. trademark issues, deceptive trade practices, false advertising) as well as a broader harm to morals/society/"the system" (e.g. restrictions on pornography and obscenity, restrictions on advertising, as well as perjury).

This is a significant change from your original position that the language of the First Amendment is clear in what it protects. The First Amendmnet makes no mention of balancing harms.

Suppose the standard is: speech can be regulated when it is dangerous or harmful is some manner and the regulation has to be tailored to the harm/danger to be avoided (i.e. you can't restrict all use of the word "fire" only those uses which might cause the harm/injury to be avoided). Now we have a test that the court needs to apply to a particular fact situation and/or statute (in the original post that would be the campaign finance reform statute). Some judges applying that test might say there is clearly no harm (as you and the author of the original article would seem to say as well) or they might come out and say that the general harm to the system is so great that minimal restrictions - e.g. short time period and limited in scope (only political advertising) - are constitutionally valid.

In this scenario, at what point did the justices cross the line from Constitutional Interpretation (which is good) to Judicial Activism (which is evil)? (This isn't a rhetorical question, I seriously am curious to see what people think)

If it is only "judicial activism" at the last step, then I would suggest that you have an unprincipled position (your definition of activism depends on whether you view the decision as 'good' or 'bad'). Regardless of whether you agree with the particular test applied, the justices have to have some sort of analytical test to decide a case, because the language of the Constitution doesn't answer every question. Gray areas appear with nearly every word, and because the document itself doesn't offer any further clarification, the justices need to go elsewhere. I'll demonstrate what I mean (I'll admit that some of what I'm saying goes too far....) Text of the Constitution: "Congress shall make no law...abridging the freedom of speech."

------------------------------
Questions left unanswered:
"Congress shall make no law": does it only apply to Congress? Should the president be able to create an executive order banning speech; how about Executive Agencies (FCC, etc.). If it is truly judge-made law and not through Congress, is it okay? Should this apply to the states --- could a state enact a law that said "Every citizen of California must wait to be called on by the governor before speaking"?

"Abridging": does this include all restrictions or just those that amount to "censorship"? How will we know if speech is abridged? Are time, place, manner restrictions okay (e.g. noise ordinances).

"Freedom of Speech": What is speech? Must it be verbal? Is e-mail speech? How about interpretive dance? Is money "speech" (conservatives argue that it is)? How about clothing? Is the word "fire" speech? How about handing out anti-war leaflets? Is obscenity speech?

-----------------------------

I know that I've had this discussion on this forum before, but I really don't think that the Constitution is as clear as people often make it to be. I get the impression that many view judicial action in the following way: it is "judicial activism" when a "liberal" does it and "judicial interpretation" when a "conservative" does it. It's funny how discussions on this forum often intertwine (it's "political correctness" when a "liberal" does it, but something undefined when a "conservative" does it).

~elwood

ACPlayer
12-17-2003, 05:20 PM
Oh, I am sure there are some cases where the individual biases are extreme -- though they likely dont survive the entire judi ial process.

Unfortunately in current lexicon, judicial activism is used for any court decision with which certain groups dont agree. So forgive me but your complaints about JA is usually sour grapes - -based on your black and white views about the world.

elwoodblues
12-17-2003, 05:23 PM
I can guarantee that Jefferson was not referring to the judicial branch in Massachussetts. Gay marriage is a federalism question. Is it something the states should decide (as they've done for the first 200 years of our republic) or that the Federal Government should decide?

Kurn, son of Mogh
12-17-2003, 05:34 PM
So the Massachusetts Supreme Court, in ordering the Legislature to make legal gay marriage

That's not what the Mass Court did. The ordered the legislature to come up with a solution to what, to them, looked like an unconstitutional ban. That leaves open the door for the legislature to pass a Civil Union statute which satisfies the equal protection issue, yet avoids the controversy of same-sex marriage.

elwoodblues
12-17-2003, 05:39 PM
[ QUOTE ]
So you think all split judicial decisions can't be far wrong

[/ QUOTE ]

It would probably be the 9-0 decisions that aren't far off, not the split decisions. This comes down to a question of leadership. If you look at statistics of past courts, the Rehnquist court has far more split decisions (5-4, 6-3 decisions). This reflects on Rehnquist's ability to lead the court to consensus. Some would argue that we want the Justices to stick to their ideals, not reach a consensus. That's fine, but keep in mind that with that sort of leadership, when your position is on the losing side of the argument you are more likely to strongly disagree with the decision. It really is counter-intuitive...our intuition tells us that 5-4 decisions are "closer" and therefore more mainstream, when reality tells us that 5-4 decisions mean that the "5" couldn't persuade the "4" to agree with their reasoning therefore it is actually more extreme.

Kurn, son of Mogh
12-17-2003, 05:42 PM
Last I check, marriage regulations were decided by the states. There's nothing in the Constitution that says it's a federal issue. Of course, tell that to the State of Utah.

elwoodblues
12-17-2003, 05:45 PM
[ QUOTE ]
Last I check, marriage regulations were decided by the states.

[/ QUOTE ]

Me too.

MMMMMM
12-17-2003, 06:02 PM
Actually my position is that no speech should be forbidden, but that maliciously harmful/endangering speech may be punished ("fire!" in a crowded theater, slander, etc.)

MMMMMM
12-17-2003, 06:09 PM
ACPlayer, this is not the first time you have wrongly ascribed motivations to me for my complaints about various processes. Before when I did so regarding the filibuster of Estrada, you made the same false, unjustified claim about my motivations. To me it is likely that it is a reflection of YOUR prejudices and partisan view of the world that you choose to see prejudice and partisanship in me where none exists.

MMMMMM
12-17-2003, 06:19 PM
Upon further reflection, Utah, I think the Amendmennt clearly allows ALL forms of speech. However that does not mean that separate laws cannot be passed to punish malicious and harmful speech (e.g. "fire! in a crowded theater or making bomb threats). Additionally there seems to be nothing precluding civil laws designed for compensation as in slander cases. So one has the right to shout "fire!" or to slander someone but one should be prepared to face the consequences if one does. Note how this is very different than infringing on one's right to speak in the first place (as in not being able to take out ads in political arenas). If one took out such an ad which actually slandered someone there could be a civil legal price to pay as well. I don't think an Amendment is necessary to forbid criminally harmful speech since it is punishable after the fact; nor should such an Amendment beenacted. However no court should be able to tell you in advance what you can or cannot say nor in what arena you may or may not say it. And thank you for supporting me in my assertion that the First Amendment is very clear indeed.

Chris Alger
12-17-2003, 06:55 PM
The language says, "Congress shall make no law" -- no law! -- "abridging the freedom of speech...."

It's a simplistic trap. If every word in the constitution were taken literally, it would encumbered by amendments making it as long as the usual beginning casebook on the subject, and mine weighed about 4 pounds. In this case, the courts have been down this path, Justice Black being the last of those that actually argued that libel laws were unconstitutional.

It also defeats the argument against striking down campaign finance laws. An absolute protection on "speech" leads to limiting the meaning of that word, most likely by distinguishing it from "conduct," which would include the means by which political campaigns are financed, which would preclude any basis for court review of any campaign finance law. The modern approach is to think hard about why we have free speech, what kinds of speech we most want to protect and how we balance the freedom against competing social goals.

"The Constitution" is too a great extent thematic and symbolic, a revered charter, not a statute or something to be interpreted like a recipe card.

John Cole
12-17-2003, 07:02 PM
M,

If I read Dershowitx correctly, and I'm not sure that I do, he argues that "fire" is not speech at all, but, rather, an alarm, or a "clang" as he calls it. Therefore, no restriction of free speech ensues.

Chris Alger
12-17-2003, 07:05 PM
But that makes your original point, and Sowell's, absolutely wrong. Jefferson was referring to all power of judicial review of legislative acts -- the supposed "right" of federal courts to declare legislation "unconstitutional" and invalid for that reason. Jefferson didn't believe in this power. (The quote was written in 1804, about a year after the federalist Marshall Court announced this power Marbury while giving the Jefferson administration a "victory" in the instant case). A Jefferson court would have gladly upheld the very legislation that you think the courts should have struck down, believing it had no choice.

Utah
12-17-2003, 07:38 PM
Well, I agree with you that if you don't take the words literally then you are left with a symbolic and thematic document - or, for practical purposes, a worthless one.

However, that is an incredibly dangerous concept because it means that none of our rights are really rights at all. Rather, they are simply guidelines that can be changed as judges see fit.

Under your symbolic and thematic approach, I find it odd that you once stated that the supreme court stole the election for Bush. If the document is not literal, the judges were then obviously free to interpet the law as they seemed fit given the current time and circumstances. In the name of justice to the country, they were well within their rights to correct a perceived wrong by the Florida Court? I can hear Scalia now, "sure the constitution dictates we rule a certain way. But come on. Everyone knows that the words don't really mean what they say and the pesky constitution is only symbolic anyway"

Lets take another example and look at all your dissent during the war. Would you be comfortable, in legal terms, if the supreme court ruled that such speech was unconstitutional? Again, sure the amendment says "no law" but that is just too darn simplistic and cumbersome to take seriously. therefore, we judges think it really means that "no law, expect in limiting dissent during war".

This is of course not hypothetical as this is exactly what happened in the Holmes case.

In the end, your left with a chaotic system that moves at the whims of those in power. And that is a very dangerous system indeed.

MMMMMM
12-17-2003, 07:48 PM
Yes, I think that's what he is saying. However, other examples, for instance criminal disclosure of classified information, are indeed speech not alarms--but they are punishable speech. Also, slander is civilly compensable speech.

MMMMMM
12-17-2003, 07:50 PM
Sorry Chris--but what legislation did I think the courts should have struck down?

andyfox
12-18-2003, 02:29 AM
Of course some parts are clear. When it says you need to be 35 years old to be President, that's clear. When it says "excessive" bail shall not be required, what does excessive mean? What you think is excessive may be different than what I think. What is excessive for a Scott Peterson may not be excessive for a Saddam Hussein. What was deemed excessive in 1797 may be different from what was deemed excessive in 1997. The right to keep and bear arms, modified by the initial militia clause, is particularly obtuse.

You're looking for an immutable Constitution. The real world of gray is not immuatable.

ACPlayer
12-18-2003, 03:58 AM
This HAS to be the MOST absurd thing I have heard from you yet.

Self analysis is clearly not something you indulge in a whole lot.

Chris Alger
12-18-2003, 05:03 AM
Maybe I've got it wrong. I assumed from your first post that you were endorsing Sowell's complaint about the campaign finance decision. Sowell obviously thinks it should have been nullified or gutted on the grounds that Congress was constitutionally barred from enacting it. (E.g., "There is nothing in the Constitution of the United States which authorizes Congress to regulate what is said by whom, or under what conditions, in a political campaign. ... Just what part of "no law" don't the Supreme Court justices understand?").

But aside from campaign finance, I'm sure you want the Court to become or remain judciailly activist when it comes to your pet policies. Gun control, for example. If Congress or a legislature outlaws gun ownership, should an activist Court expand the traditional interpretation of the Second Amendment and prevent the law from taking effect? How about the recent activism on behalf of property owners regarding the takings clause and just compensation? Or the sharper limits the Court has placed on Congress's ability to use the commerce clause to enact various criminal legislation (e.g., striking down the Clinto-era ban on handgun possession in schools)? You never hear conservatives complain about that because their opposition to judicial activism is essentially unprincipled.

MMMMMM
12-18-2003, 11:22 AM
Well I do happen to think that neither Congress nor the courts should be forbidding anyone from spending their own money to express any opinion they might care to express.

I am also generally in favor of literal interpretation of the Constitution. I don't think my views on this are altered by whether I favor a particular cause or not. I'm not as familiar as you are with the examples you cite so I can't comment knowledgeably on those specifics.

I favor an approach to the Constitution that John Cole once referred to as "but that would mean that all that is necessary would be for someone to be a good reader" (paraphrased from memory). Add to that "good reader" requirement, a solid background in the Law: chief justices should be thoroughly grounded in the law and be good readers--and when it comes to opinions on Constitutional cases, I think that's all that they should apply. Any changes that really need to be made can suffer and pass the Amendment process should those changes truly be worthy.

MMMMMM
12-18-2003, 11:24 AM
Well it's true--and it is the result of much self-analysis.

Sorry if your limited view appears to you the whole picture.

MMMMMM
12-18-2003, 11:32 AM
"excessive bail" is not unclear--although the measure of "excessive" is dependent on the circumstances--the word "excessive" always is dependent on circumstances or comparison: it's the nature of the adjective "excessive." So the clause may be crystal clear but "excessive" is dependent on the overall setting. That's not the same as a clause being "unclear."


"Congress shall make no law abridging the freedom of speech" is completely clear, though.

andyfox
12-18-2003, 01:23 PM
How who's engaging in sophistry?

Yes, of course we know what the word excessive means. What exactly constitutes excessive is the point.

And what constitutes abridgement? Or "free" speech? Sometimes the frames use "abridged," sometimes "infringed," sometimes they talked about prohibiting. They chose their words carefully. So there must be some difference between prohibiting something and abridging it.

Hey, I have no doubt judges decide what they like, either consciously or not, and then write their opinions accordingly. My point is that, right or wrong, this is inevitable.

MMMMMM
12-18-2003, 01:51 PM
andy, I'm not engaging in sophistry; I think I'm making an important distinction. Inclusion of a word which has a meaning which is based on a comparative quality and/or on circumstances (e.g. the word "excessive") does not, by itself, render unclear the meaning of an entire sentence or clause. You seem not to be distinguishing between lack of specificity and lack of clarity--and in this context I think it is an important distinction.

"Congress shall make no law abridging the freedom of speech."

I see nothing at all unclear in the above statement. If there is anything truly unclear in this statement perhaps John Cole could tell us what it is. andy, feel free look up "abridge" in a few big old dictionaries if you think there might be any meaningful quibble about the definition. If you say that "speech" is not adequately defined for all conceivable circumstances, I would again say, please don't confuse lack of specificity with lack of clarity.

"Hey, I have no doubt judges decide what they like, either consciously or not, and then write their opinions accordingly. My point is that, right or wrong, this is inevitable"

To the extent they do it deliberately, or to the extent they do not take some care not to do it accidentally, I think it is inexcusable when dealing with the very foundation of our legal system: the U.S. Constitution. And that some degree of prejudice inevitably exists does not justify that prejudice be involved deliberately, or that it be considered acceptable, merely because perfect non-prejudice is unattainable. The assigned role of justices in interpreting and upholding the U.S. Constitution is specifically to do so without prejudice and without their own prejudices as best they possibly can.

andyfox
12-18-2003, 02:00 PM
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

So we are allowed to have the arms necessary to maintain a well regulated militia. Or if we see that a well regulated militia is not necessary to security, then the right to have arms. Or the right to bear arms shall not be infringed, period, whether those arms relate to a militia or not.

Maybe I'm a bad reader, but that comma after Militia doesn't belong there, nor the one after Arms.

MMMMMM
12-18-2003, 02:16 PM
The Second Amendment is tricky and possibly somewhat unclear (genuinely so) because of that comma issue. However I think an interpretation can still be made with a fairly good degree of confidence, thus:

"militia" meant not a standing army, but the common people who would band together for mutual defense in time of crisis or need. Therefore the right of the people to keep and bear arms (which is necessary for a militia) shall not be infringed. In other words the people shall have the right to keep and bear all manner of arms which would be useful or typical of those used in a militia (and possibly more). This would include at least all light weaponry.

Kurn, son of Mogh
12-18-2003, 02:21 PM
"The Constitution" is too a great extent thematic and symbolic, a revered charter, not a statute or something to be interpreted like a recipe card.

I'll agree that the Constitution is less than a recipe card, but more than purely a symbolic charter.

The purpose of the Constitution is to codify the limits of what the government can and cannot do. Simply having a democratic process does not ensure a free society. Many issues are too important to leave to the whimsy of 50% + 1.

I believe it's importanat to stay as close to what can be discerned to be the original intent as possible, and leave changes up to the amendment process, which is and should be, slow and difficult to achieve.