The “enlargement of the town square” provided by Facebook is, to me, undeniably a positive expansion of free speech. It is very welcome.
I maintain that the application of, for instance, the town square analogy obligates us to examine parallel analogies, if for no other reason than to understand the limits of the applied analogy. For example, Facebook expands the public square, and that is a positive good. This would mean that “seditionist speech” (let’s just use that as a placeholder for speech that is largely understood to be against the public interest to the point of posing a threat to the public weal so as to avoid definitional concerns) would also reach a larger public square.
However, contemporaneously with the increased public square has been a technological increase in the amount of death and destruction any given individual can cause. Combined with an increase in the sheer numbers your soapbox can reach, aren’t we obligated to examine such parallel analogies? I would maintain that we are, but the question becomes which parallel analogies are relevant. And then again, we’re piling up analogies.
Again, I’m getting myself a bit out into the epistemological weeds here. As Law is built on Philosophy (N.B.: I am not a philosopher either, by arts or letters), I find the connections rather fascinating.
It is a good argument. If X is a good thing, could X plus Y be too much and a bad thing? I think not WRT free speech.
It was a horseshit argument, and a terrible attempt at sarcasm. Yes, there are rights we have not mentioned in the Bill of Rights. That doesn’t mean that every damn thing that you can think of is one of those.
Interesting. But let me back up a bit, and admit to question begging here. I posited a definition of “seditionist speech” as “speech that is largely understood to be against the public interest to the point of posing a threat to the public weal”, but in light of this answer, is speech as I described possible?
Let’s ignore incitement-type speech that plays too much to emotional feedback, as well as conspiracies to commit crime, and just consider, well, considered speech meant to cause harm. Can there be such a thing? I would suggest that the division between “considered” speech and “incitement” is more of a gradient, and we are looking at where the line is drawn, but I can certainly grasp a more absolutist position here, and maintain that the institutions, by virtue of the same freedoms exploited by the nefarious, should be strong enough to counter such messaging. I’m not sure that they are.
One requirement we have in Great Debates is that the exchange of views remains civil. This exceeds that boundary. Please refrain from using such characterizations in future.
Not a warning.
ETA: Based on discussions among the community and with other moderators, the above mod note is revoked. My apologies to @UltraVires for my over step.
You’re not suggesting that the 9th Amendment can simply be ignored, are you? Is it kind of like the “precatory language” in the second amendment - conveniently skipped when it proves awkward to apply.
And is it really fair to suggest that family planning is just any “damn thing you can think of”? The judges who’ve addressed these issues usually take pains to point out the basic, rudimentary notions of liberty to which they apply these protections.
If you disagree, then I’d be interested in your response to the hypothetical in the Griswold concurrence.
Yes, the Supreme Court got it right. They always get it right, one hundred percent of the time.
Because they are the standard which defines what a constitutional right is. So abortion became a constitutional right on January 22, 1973. And everybody who takes an oath to uphold the law is supposed to recognize this.
Look at the presidential oath. It says to preserve, protect, and defend the Constitution. There’s nothing in there about figuring out ways to get around the parts of the Constitution they don’t agree with.
Go back a hundred and sixty years. The Taney court issued a decision that said black people have no rights. That was immoral. But it was the law. So Congress and the states enacted the fourteenth amendment to overturn Dred Scott.
That’s what people need to do if they think we should stop abortion being a constitutional right; amend the Constitution.
Under an originalist interpretation, it would seem the government would be free to, say, tap my phone line, or peruse the contents of my gmail account at will.
If, as you say, the Supreme Court always gets it right, one hundred percent of the time, then what happens if the Supreme Court simply issues a decision that, no, abortion isn’t a Constitutional right? AFAICT, Gideon v. Wainright overturned Betts v. Brady, much like how the Miranda decision expressly overruled Crooker v. California and how Obergefell overruled Baker v. Nelson, and so on, and so on — so, would overruling Roe involve the Supreme Court getting it, again, one hundred percent right?
Can you tell me what you think it is? I spent my life in the law. I often have opinions that don’t sit well with people who just have a passing knowledge of things. That is entirely to be expected.
Hey, UV, I just wanted to say “Thanks” for indulging me, here. I hope you don’t think I was trolling for some sort of “gotcha”; Originalism always struck me as overly romantic, so I wanted to avoid the politics and see if I could get some understanding of the philosophy.
I can’t say that I am 100% in agreement (I am obstinately liberal), but it’s good to understand where the differences are down in the roots, instead of just butting heads politically.
It is spelled out in Article III of the Constitution of the United States, starting with “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” It is the role of the legislature to draft and ensconce into statute the laws, but it is up to the judiciary, as ultimately determined by the Supreme Court as conflict arises to that level to interpret statute and prior case law in the context of the Constitution. When the courts ‘strike down’ part or all of a law as not being in accordance with the Constitution they are acting as a check upon legislative overreach (and the same for challenges to executive authority although the courts have been far more lenient in that area).
The notion that if some specific issue isn’t explicitly written into the Constitution that any law regarding it must therefore be free from Constitutional interpretation or restriction is not an accepted principle by the vast majority of Constitutional scholars. The Constitution is a set of general principles with some specific enumerations of government powers, and in the first ten amendments a more explicit description of personal rights and restrictions on government actions. It is not a prescriptive document in the sense of “everything not explicitly permitted is forbidden”, or that it can only apply to issues about which the original authors had knowledge and experience. The Founders who drafted and voted on the document had seen social and technological progress in their day and most certainly expected that change would follow them that they could not anticipate, hence why the Constitution is a short document with mostly plain language instead of a large set of legal volumes intended to capture the nuanced discussions of the Federalist Papers and other writings.
Like someone else said elsewhere Bork’s major problem was he could not resist wanting to win a debate and “prove them wrong”. You don’t do that to the Senate committee. If you’re patient most of the time they’ll make themselves look inept, and you will be confirmed anyway. But Bork was not patient.
Would have been a fine Doper but bounced in frustration or gotten banned by the early 20teens.
But conversely, some “damn thing you can think of” COULD be one of those, no? Going back earlier:
So the originalist counter to pleading the Ninth would be something along the lines of “Madison could not have ever imagined that this could be taken to mean a right of a man to marry a man, so no, it’s still not protected there either”? Well, then we barely progress from that nothing that is not textually mentioned is protected, to that you may also count only such things as were or could be already conceived of by the Common Law or by the sociocultural consensus of a group of elite landowners and burghers in 1787.
Now, let’s be fair: The framers were wise to deliberately make it so that the federal constitution could not be trivially amended with the blowing wind or metastasized into an über-Civil and Administrative Code (see: “Marriage Protection” amendments to state constitutions in the 00s; California initiative process; Alabama Constitution). That is good. But they also did not set it forth as a codification of social mores or operating policy – they were reasonable and intelligent men, and they probably expected those things to continue to be handled under regular legislationand social consensus, and that there would be changes to the specifics as per changing circumstances and standards, as there had always been.
Thing is, they may have not foreseen the situation of people feeling that any right or liberty not directly vested with constitutional protection is at best worthless and at worst forbidden.
“The Supreme Court is not final because it’s right, it’s right because it’s final.”
It’s a clever phrase though the point is that the whole edifice of is based on accepting that finality as if it were “right” – we can’t be forced to like it like it but we have to abide by it. We have seen what happens when some other branch of the government begins saying “hey, where does it say anyone can keep me from doing what I want”?
No, I wouldn’t say that. The decisions of SCOTUS and the lower courts are interpretation and are subject to revision by higher or future courts. The Constitution is essentially a statement of basic principles, and altering those requires amendment, which is a deliberately onerous process because the Founders didn’t want such changes to be made on a whim.
The idea that bad law can only be repealed and replaced by the consensus of public sentiment ‘sweeping’ the offending legislators out of office is actually contrary to the entire purpose of the Constitution, which is to protect certain rights and limit government authority even if popular opinion of the day leans otherwise. The Supreme Court (and lower appellate courts) have the duty of adjudicating whether statutes are good law and whether the interpretation of trial courts, regulatory agencies, and executive authorities are interpreting the law in accordance with the Constitution.
And frankly, self-described “originalists” are often just fine with interpreting the Constitution to cover some issue when it suits them, and otherwise not. I’m in agreement with @Moriarty that ‘originalism’ is an absurdist philosophy in the sense of being able to divine narrowly proscribed interpretations even without consideration for the fact that many of the issues faced by courts today were not even conceivable more than two centuries ago. ‘Originalist’ is actually just codespeak for the regressive belief that nothing should change, even when the self-identified advocate is sincere in their intent.
As for Bork being “the smartest lawyer in the last 60 years” and being kept off of the Supreme Court just because of his stance on Roe v. Wade, these claims are so fanciful as to be deliberate satire. Even if Bork was the James Clerk Maxwell of American jurisprudence and everyone was just too dense to understand the complex calculus of his legal scholarship, there were good reasons to doubt his character, professional integrity, and the political neutrality that conservatives pretend to be so concerned about when wailing about “progressive judicial activism” but are fine with when it comes to supporting radical conservative interpretations. Regardless, Bork subjected himself to a Senate hearing with full knowledge that the concerns about his controversial legal views and personal actions would come up, and whinging about “Borking” is a mouthful of sour grapes.
I had this same discussion in a past thread. I said that the Supreme Court had overturned some of its earlier decisions when it issued the Brown decision in 1954.
Bricker, who is an actual lawyer and was still posting on this board at the time, said I was wrong. He said that the Supreme Court never overturns the decisions made by an earlier Supreme Court decision. He said that while Brown is a legally binding precedent, so are Plessy and the Civil Rights Cases.
Unfortunately, Bricker then declined to explain the details of how that worked.
Be careful what you wish for. Remember that even if you don’t like abortion, there are some unenumerated reproductive rights you might actually miss if they weren’t protected. If some environmental nut jobs take over California and decide to implement a Chinese style one child policy complete with forced sterilization and abortion, what article are you going to point to to stop them?