And, as an aside, I think UltraVires is doing a fairly good job at emphasizing, once again, why it was such a good thing that Bork was rejected from the Supreme Court. And showing why accepting “originalism” as the only proper method of Constitutional interpretation is especially dangerous. U.S. citizens could lose a massive amount of rights (currently abortion, same sex marriage, and voting are the chopping block with the current SCOTUS), including choosing how to rear your children, making your own medical decisions, using contraception, interracial marriage, anti-discrimination laws, and a whole host of others. This isn’t just an academic exercise.
We’ve encountered this argument before – that recognizing a general right of privacy or personal/domestic autonomy can somehow lead to pleadings that no conduct conducted privately may be outlawed.
Now, sure, some of us would say the counter to that would not need to be on a “constitutional” but just a moral basis – that it means you do not outlaw things that do not harm others. I can outlaw beating your kids because it hurts the kids, I may outlaw possession for personal use of cocaine because the cocaine traffic causes regular street crime (though that’s kind of circular), but I couldn’t outlaw contraception or gay marriage because it does not materially hurt anyone else.
But like you said accurately, the Supreme Court decisions are not whether the law is wise, or is just, or is wrongful, but over whether it is does or does not counter the constitution.
OTOH, the Senate process, not being a court proceeding, can go into the matter of whether the nominee’s position offends their moral appreciation of how the Law should be interpreted. It is a political process.
As an aside: some issues the general public have with this whole thing is an idea among some that if it’s not in the constitution you should not bother at all even trying… or a very justified fear that if a right or liberty is not “constitutional” then it’s just a matter of the arbitrary whim of the temporal legislative majority or socioculturally dominant group, and then that is injustice. The problem is that is itself a moral, not constitutional judgement.
But he didn’t just say it was a bad law. He said it infringed upon people’s Constitutional rights. He was quite clear that “bad law, but Constitutional” was his position as a justice.
Don’t worry. I know why you don’t want to answer thye question.
And we’ve heard this counter. But where in the Constitution has this neo-Libertarian position been enacted into law? The framers had many laws which arguably did not “harm others.” Sunday closings, fornication, polygamy, bestiality, and so forth.
That is a political position that I happen to agree with. If you want to use cocaine in your own home, and don’t become a public charge, then go for it. But for a judge, how is that your constitutional right? How is contraception your constitutional right?
Those are excellent questions which Bork, as a professor, seriously engaged, and what should be encouraged by everyone, but especially lawyers and judges.
As a “not a lawyer”, I have a question here. Isn’t this really the nut of it, how closely the analogy hews to what was at the time known? For instance, just how derivative Facebook is from the broadsheets and town square available at the time? Or how a car, which can be secured from non-authorized entry, more closely adheres to “secure in their effects” than an open carriage?
It seems to me that “originalism” et al falls down to where this line is drawn, and how it’s justified one way or the other. But again, “not a lawyer”.
It is an excellent question mostly for the reason that the law, especially the criminal law, is to be able to be understood by non-lawyers.
So, I’ll ping-pong the question at you. If you were a non-lawyer average citizen in 1789 and were given a glimpse of the future that is Facebook, would you agree that the same rule should be applied to Facebook as to a posting or a crier in the town square?
I think that’s precisely it! The courts are constantly having to analogize the current controversy to the original words and try to decide if, or how, it fits. That’s their role: to interpret the law.
But some take the position that their own particular interpretations are just self evident applications of the words, whereas other people’s interpretations are just invented justification for subjective values not enshrined in the words.
Likewise, if there’s a law against, say, murder, and then someone invents a new weapon and murders someone with it — so what? If the law, as written, didn’t limit itself to weapons in existence at the time, isn’t originalism the idea that we can apply the existing law? With no analogy required?
Assuming that I didn’t burn you as a witch…
Probably not. It’s not really the press, it’s not speech. It really is a whole different form of communication. Because of the gradual change in communication, we have become accustomed to radio, TV, skywrighting and billboards, so to us facebook is just another outlet. To someone who either has to hear something, or is has to come from a printer with a substantial investment, facebook would be a complete game changer to their way of life.
Of course, if you gave that same person a glimpse into the future that is the M134 Minigun, they probably wouldn’t think that the same rules should apply to it as they do to a musket.
I don’t know why you feel you have scored a point here. Yes cars have more advanced locking technology than carriages in ye olden days. It would still be a trespass. Just because your front door is unlocked is not an invitation for me or the government to intrude.
From my perspective, all you are saying is that you have better and more efficient speech and arms. If it was a good, why is more not good? Are we suffering from too much freedom? The argument against Bork was that he didn’t allow enough freedom.
Hmm. I would consider that to even address the question of Facebook, we have to look at its evolution, and how those questions in the evolving of the technology that led to Facebook were addressed. In other words, the analogy stretches, or progresses in steps. For James Madison to conceive “Facebook”, he would need to understand everything from the modern printing press, through radio and television, to the internet.
So, should Facebook be treated like the town crier? How was that question answered for radio, television, internet, etc.? I don’t think we’ve actually finished answering these questions.
And to my perspective, you are redefining what speech and arms are in order to cover the things you think should be covered.
The framers had the printing press, but I agree with your analysis, but at each step it just says “better speech.”
If someone wants to make an argument that one of those steps presented a fundamentally different thing, and again, not because we don’t like dissemination of speech because that would be contrary to the First Amendment, then a judge should listen carefully.
But I don’t see anything from 1789 to Facebook that does anything except allow people to speak their minds.
I disagree. The founders wanted arms that could counter the British Army. If someone had said that we will allow an invasion to continue to develop arms, but restrict ourselves to “this day” technology, that would be laughable.
Same way with speech. Nobody thought that speech would be bad if it was too powerful. They would have welcomed Facebook.
I don’t know why we are even disputing this when there are good issues for fodder out there.
Even in 1789, they recognized the difference between “soapbox in the town square” and “inciting a riot”. So to continue with the, uh, “analogy analogy”, do some Facebook activities derive more directly from “inciting a riot” than “soapbox in the town square”?
Speeches in the town square would be far more likely to incite a riot than a Facebook post. And the Supreme Court has dealt with that in Brandenberg by saying that speech which could lead to immediate imminent lawless action can be punished consistent with the First Amendment. I think Facebook would mitigate those issues much more than if someone was addressing a drunk and fired up crowd in the town square.
What if the line gets drawn more closely to seditionist speech, rather than incitement?
My apologies; I’m not going to hold you to an answer, as I am being semi-rhetorical and I’m not going to insist you start dusting off lawbooks.
I guess my point is that, in every step from broadside to Facebook, we’ve driven Constitutional interpretation by arguing what was intended analogously, and now we’re using analogies of analogies. Like a game of Telephone, how many generations of analogies before the connection is meaningless?
This isn’t so much a legal question as a philosophical one, so I’ll let it drop, but certainly welcome any remaining comments.
I do appreciate your politeness, something missing from this board in latter years.
We first look at the text and the understanding. What is free speech? It means that a man (women weren’t considered then, but are now) can speak his mind. It is tyranny to shut a man up. If Mitch McConnell is an asshole, I can say it, not only in my house, but on the street and to the town. That is good because speech informs and invites reaction.
So, let’s put aside the game of telephone and just compare Facebook to 1789. If I want to say that Mitch McConnell is an asshole, then why should I be limited only to the street and town? Why shouldn’t I be able to say it to the world (or anyone who looks at my Facebook posts)?
Can a judge make a distinction between my saying it in the town square and making a post on Facebook? The only distinction I can see is that my Facebook post would be too much speech. That I reached far more people than yelling it out my front door. But the text says I am free to speak, and the underlying value to that is that speech is good for everyone, so why shouldn’t I be able to speak in that way?
The platform allows more response in opposition to my speech. Maybe in the town square, people would be afraid to go against the majority. But on Facebook, one person could do that.
Again, if you could show something about how Facebook is different, and not for speech reasons, from the town square, then a judge would carefully look at it. I see it as only a wonderful realization of that fundamental right which consistent with my earlier opinions doesn’t create new rights to gay marriage or contraception as those issues are completely foreign to the Constitution.
If only the founders of the Constitution had thought of that and specifically said that the list of rights in the Constitution, were not, in fact, exhaustive. If only they specifically said that listing some rights does not mean that other, unlisted rights can denied or disparaged. Putting that in the Constitution would have made it perfectly clear that protecting only the listed rights would be the completely wrong way to interpret the Constitution.
If only.