I’m not sure what the judge meant, exactly, but what he said has not just gotten the guys at Red State tied up in knots; it also raises a kind of interesting question. Here it is…
In a Constitutional Democracy, the Constitution is found to have two mutually exclusive statements. For instance:
Amendment I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment C:
The Congress shall have power to prohibit the physical desecration of the flag of the United States.
How should it be decided which will apply, if a case of flag desecration is ever prosecuted? Considering how many amendments are being routinely pushed which are anathema to the concept of a Democracy with constitutionally protected civil rights, this is a question that it would pay to have an answer to.
Coin toss?
If the gov’t wants to suppress certain kinds of political speech, it can do it. It already has.
See: McCain/Feingold.
Political ads & contributions have already been declared to be ‘speech’ acccording to the USSC, the same entity that said that campaign ads within a month of an election are bannable.
Dude, these comments are light years faster on approval.
I think RW has the answer: careful definitions. I’ve been having arguments elsewhere about the definition of marriage, for example, which your link discusses as well. People draw the lines in different places.
I think another issue, though, is practical tradeoffs. I think, in principle, that the planning of a terrorist attack, as long as it’s not carried out, is an exercise of free speech, but I’m happy to support restrictions on that kind of behavior. There’s a balance to be struck.
RW – I don\\\’t have a blacklist yet… When it has to check against 15000 blacklist entries like the old one did, things might slow up.
RSA, RW – I knew I should have invented an example, instead of using one already being debated. Look at it this way: Say the Constitution says (Article 1): Kill All Puppies, Leave all Kittens alive; (Article 2): Kill All Kittens, Leave all Puppies alive. What then? Who decides which applies in any given case?
The Decider decides.
The power of the constitution is way, way overrated. Have you never noticed that?
Kittens versus puppies? Tough choice. . .
So the logician in me (he’s very small and not too smart, unfortunately) says that if there’s a contradiction in the foundation for legal reasoning in your constitution, you’re hosed: you can derive anything from a single contradiction.
But the practical reasoner in me says that a set of laws is in part the product of consensus making. We don’t just have a set of laws; we have laws plus a process by which laws can be revisited, revised, retracted, and so forth. That is, rather than put my faith in the current laws, as they exist, I’ll put my faith in the entire system. By analogy, when I see a scientific result that’s been demonstrated, my belief in its validity is not only contingent on all the assumptions it’s based on but also on the understanding the the scientific method is self-correcting in the long run.
The answer is “the people” via their representatives. Apparently, they wanted McCain/Feingold and they didn’t want flag burning. We get to change our constitution whenever we feel like it as long as we pass the necessary obstacles (2/3 & all that) as it should be.
You can’t yell ‘fire’ in a crowded theatre and you also cannot start a riot in a crowde theatre by shouting a political speech even though we have the freedom of speech, which would fit your example. There are curbs and 99% of the time they’re prudent. The first amendment primarily pertains to the power of the people to speak against their gov’t, and I dare say that after what I’ve seen in my adult life, we’re sure not lacking in that ability.
OK, RW – so let me put it this way to you – if Article II in the Puppy/Kitten thing is an amendment, but it does not repeal Article I (which was in the original or part of an earlier amendment), Would a judge be justified in striking down a law that:
a) would protect kittens and endanger puppies, based on Article I, and despite the later amendment?
b) would endager puppies, and protect kittens, based on Article II, and despite the still-standing earlier provision?
c) either, since since both provisions are still in the constitution?
d) neither, since the constitution is now too ambiguous to apply?
RSA – Ok, now that your practical side has been nailed down – if an article of the (MA, for instance) constitution guarantees equal protection under the law, and an amendment denies equal protection to certain individuals, without repealing the original article – how should \”the system\” cope with the contradiction?
I think that this is the responsibility of the legal system. As soon as a situation arises in which either statement in the constitution is applicable, someone can take it to court and have the legal hierarchy work the issue out. This is an opportunistic way to proceed, meaning that it doesn’t address problems that don’t affect anyone enough for them to care about. It’s not ideal, in that inconsistencies can remain.
smijer,
The judge can rule however he wishes but it’ll eventually go to the USSC and who knows how it’ll rule. As I stated, they’ve already ruled that McCain/Feingold is hunky-dory despite already ruling that campaign ads/contributions are protected political speech. Further, they’ve already ruled that Affirmative Action is legal discrimination (which it most certainly is) and yet one of the judges wrote in her opinion validating it (O’Conner) that it wouldn’t be necesarily needed (read: legal) in 25 years.
If the USSC decides that killing puppies is legal (money is political speech and curbs are illegal) but decides that killing some puppies is illegal (McCain/Feingold’s curbs on the same political speech is legal) or a few small litters (they’ll decide the amounts of money that can be legally contributed, pulled from thin air) can be whacked, they don’t need justification. Criminey, they’ve recently relied on FOREIGN LAW to rule on death penalty cases (so much for the oath to the constitution).
IOW, sometimes they make it up as they go along…on both sides.
McCain/Feingold
What McCain/Feingold does (or any campaign finance law seeks to do) is limit or control contribution from people to political candidates. What the first amendment guarantees is that congress “shall make no law…” that abridges an individuals freedom of speech. Giving money to someone is not speaking, it’s paying some one else to speak and it’s simply not the same thing. If you want to buy commercial time, you can, nothing in McCain/Feingold (as far as I know), prevents this. If there is something that prevents individuals from speaking then that is wrong.
But this idea that giving bribes to political candidates is somehow protected speech is crackers. Freedom of speech is an individual right, paying someone to speak for you is not protected. The first amendment protects individuals from the government punishing you for speaking your mind; it does not guarantee you a platform for your speech to be heard.
money is political speech and curbs are illega
None of the founding fathers would have agreed with this. Speech is speech, and money is money, two different things. Show me one piece of evidence that even suggests that the Founders would thing that Money = speech, this notion is the most destructive bit of judicial activism ever foisted on the nation and people just seem to buy it hook, line and sinker.
Sorry Rick, I’m with RW on this one – at least as far as the statement that McCain Feingold abridges freedom of speech/press. No, money isn’t speech itself… but look at it this way… You and your buds put together some money to make a commercial encouraging people not to be racists (or kill puppies, or whatever else): Now, the Congress decides they like racism or puppy-killing or whatever, and they decide to make a law that you cannot buy commercial advertising to promote that cause. Are they not thereby abrdidging your 1st amendment rights?
Frankly, I think the court decided wrongly in upholding McCain Feingold… I do like the idea of leveling the playing field so that politicians and their platforms can compete on their merits rather than on the amount of money they can raise, but that’s not the way to do it. I’m starting to think that the right way to do it is to open up the system to 3rd parties and to empower more people – more non-corporate-elite people to pool resources to even the field against the big-money spenders. The NetRoots is one good mechanism for that… we just need more, and need to break the 2-party monopoly on political power.
Rick,
McCain/Feingold bars you or me or anyone else from making our own campaign commercial against a candidate wihtin 30 days of an election. That is exactly the epitome of quashing freedom of speech, and if the person is an incumbent it means it’s keeping me from speaking out via my local affiliates against the government. Incumbents got a huge boost from it (likewise with the 527s) and much of the power for information swung back to the media, which cheerleaded that piece of legislation like no other I’ve ever seen.
“Giving money to someone is not speaking”
Au contraire, the USSC has already ruled that political contributions are political speech, as it should be. You’re expressing your political opinion via contributions to the cause/person you endorse. I don’t have the case to link to (I’m not a lawyer) but I’m 100% positive that it’s already been ruled on as such, which is why most experts thought that McCain/Feingold would be overturned as unconstitutional….because it is. I should be able to go down to WSB television in Atlanta and air an ad for or against whatever politician that I wish, but MF (appropriate acronym, IMO) makes that illegal.
In America, that’s illegal.
Don’t get me wrong, I hate money buying influence as much as anyone (which is the only reason why both sides are basically giving short shrift to the illegal alien problem) but MF was atrocious and George W. Bush signing it was an abomination (sadly, just one of many that he’s committed).