It’s a state issue. States aren’t limited in their authority by the federal constitution.
Doesn’t bother me. I’m pretty much a free speech absolutist.
But Polycarp is using examples of strict constructionism, and there aren’t many strict constructionists out there. Scalia, for instance, is not a strict constructionist-- he’s an originalist who uses a textualist approach to determine original intent.
Really? I know that they were not originally, but I thought later amendments so limited them. Under a strict constructionist reading, then, does that mean that a state could throw me in prison for saying, “My senator is a jackass,” or that my state could require me to convert to Southern Baptism or else pay a hefty surcharge on my income tax?
These seem to me to be consequences almost as unfortunate as allowing kiddie porn.
Daniel
I apologize that my last post was a little strong in wording. What I ought to say is just that it is seems to me that one is making a decision about which amendment should take precedence in a way that happens to support your basic philosophy.
I am basically of the belief that “strict constructionism” and its variants are essentially code words for a judicial philosophy that really have no better objective justification than other alternatives.
OK, so a reader at Andrew Sullivan’s blog wrote the following:
Here’s the link. I’m not legally trained so maybe I’m missing some important points–any legal Dopers want to comment on the assertion and dissension?
Well, if we’re talking “strict construction”, then the 14th amendment would have spawned incorporation as it has. Even today, not all of the bill or rights have been incorporated. It was a slow process.
I don’t know about converting, but some of the states did support specific churches with tax dollars in the early 19th century.
But states have constitutions, too. In some cases they are stricter than the federal one (that’s how SSM was legalized in MA). I don’t understand this fear that the states are like children and must be supervised by the feds.
A “strict constructionist” would say: if you want to apply the bill of rights to the states, pass an amendment that says to do just that. If you can’t, then maybe it’s not something the states want done.
Oops. That should be “wouldn’t have spawned…”
Whereas I would say, given how long they’ve applied, it’d be unwise to stop applying them suddenly. It could be that no such amendment exists because in our current judicial climate it’s unnecessary.
And I’m not worried about states acting like children: I’m worried about states being overrun with prejudice. It’s happened once or twice before in our history, I recall, and I think that a federal government can act as a buffer against that sort of thing.
Daniel
The real issue, as I see is it, is whether or not originalism* is a judicial philosophy that should disqualify someone from the SCOTUS. That is what some people seem to be advocating. I happen to think it’s a very good method of judicial interpretation, maybe even the best method. But I wouldn’t disqualify other schools of thought outright.
*I dislike the term “strict constructionism”, so let’s assume we’re talking about Scalia-style originalism
I would often agree (although not in every circumstance). I would prefer that some decisions hadn’t been made, but many of them are so embedded in out legal system now that you’d do more harm than good by overturning them.
How is that different?
And when “prejudice” resulted in government enforced racial discrimination, I would agree with you. The 14th amedment actually does place restrictions on the states. It speaks specifically to what states may not do.
I take it you’ve never lived in Texas.
Too much brush, and it seems to always need clearing.
But that’s a actually a good point. Texas does, shall we say “push the envolope” on some issues, and when they institutionalize* racial discrimination, a plain reading of the constitution justifies a slap on the wrist.
*that is to say, put the force of law behind it
As long as Alito is left of Bricker and Shodan, the Constitution will survive.
I don’t know many children with a history of turning a blind eye to lynchings, for one thing.
The state has nothing sacred about it that makes it the wisest level of government. There’s no reason why it’s going to make better decisions than the county, the neighborhood patrol, or the federal government. A tension between all these levels seems ideal.
Daniel
:dubious: Advocating terrorist attacks is OK too?
I think we’re entering the land of snark now…
But let me ask you: What specifically did the feds do to stop lynchings?
Not nearly enough. A legend has surfaced over recent years that paints the FBI as palladins of civil rights, visiting Federal wrath upon violent bigots. It is the utterest rot. Along with the charming myth of JFK as the original champion of civil rights. For all his faults, and they were legion, it was LBJ who did the heavy lifting.
Define “advocating”. I can’t say I’ve given this a whole lot of thought, but if you mean standing on a soapbox and saying “I think terrorism against the US is justified”, then probably yes.
If the right to free speech is absolute, I think it would have to cover the actual incitement to commit crimes, and perhaps even the speech among co-conspirators in planning those crimes. It could also disallow laws that forbid lying to investigators or aiding and abetting by speech.
Well, of course, “absolute” is a relative term.
Absolutely.