Constitutional Compliance?
Why, that’s just crazy talk and has no place in politics:
There is a glaring omission from the issues addressed in not only the presidential debates, but the debates and campaign literature of almost every candidate for public office in the United States. It is also missing from media coverage, polling, debates on the floor of Congress, and most public discussion.
That issue is constitutional compliance.
Once in a while someone who doesn’t like some policy or official act will call it “unconstitutional”, but usually without much explanation of why it might be unconstitutional. Too often it is just a special pleading that is dismissed as such.
Determining what is and is not constitutional is not just a duty of lawyers and judges. It is a duty of every citizen, in the way he or she lives and works, and in the ways he or she votes. Corruption begins with every voter who votes his pocketbook instead of for what’s good for the country in the long term.
President Bush promised to nominate only “strict constructionists” to the federal bench, but do his nominees qualify? Or are they just conservatives whose copies of the Bill of Rights are missing the First and Ninth Amendments? On the other side, many of his nominees have been blocked by Democrats who claim they are trying to protect Roe v. Wade, but who privately seem more concerned that much of the legislation and spending programs favored by their constituents might be stuck down as unconstitutional by true strict constructionists. Their copies of the Bill of Rights seem to be missing the Second and Tenth Amendments.
October 12th, 2004 at 8:43 am
So my question would be, is “strict constructionisum” the gold standard of Constitutional Interpretation? If so why? And is it an objective standard? I would argue that it is not an objective interpretation and is every bit as malleable as any other method of interpretation give the fact that many of the founders instated on words and phrases to be included in the constitution so as to allow novel interpretations later, and many of the founders used these novel interpretations later when they were elected to office.
October 12th, 2004 at 9:04 am
I don’t really see a need to “interpret” per se, after all the constitution says things and often they really mean one thing. I don’t see, for example, how any sane person could argue that campaign finance reform is not a violation of the first amendment.
October 12th, 2004 at 10:17 am
Uncle,
Then color me insane, I have argued this a number of times let me give you the readers digest version.
First of all I’m don’t argue the particulars of the current McCain Feingold bill may well contain some provisions I might see as having constitutional problems. It depends on what exactly in campaign finance reform your discussing. All of it, some of it?
My contention is the Money = Speech test brought up in Buckley v Valeo is bogus and was a bad ruling. I think that any law that restricts giving money to a political candidate is not a violation of the constitution (and the court agrees with me on that score) for these reasons.
Freedom of speech is an individual right. Rights are inalienable, meaning they are inherent to an individual. They are a part of each individual that cannot be lopped off and traded away any more then you could give away your heart. You simply cannot proxy away a right, it’s inherent in you, and it’s not possible to give some of your right away because you would be trading away that which is an inherent part of each individual. I know of no other right that can be offered up in trade as people seem to believe that speech can.
Individuals are granted freedom of speech, not groups, not political parties nor are corporations or unions, only individuals. So any application of the constitutional right of free speech, outside of context of the individual is extra constitutional and a novel interpretation (abet one that many seem to accept at face value including some supreme court judges). When you give money to a political candidate we are no longer talking about an individuals right to free speech.
If an individual wants to spend all of their money on political advertising, fine, that is an individual exercising their right to free speech (and this is one part of current law that I do believe is not constitutional), Having suad that, giving money to a candidate so they can speak is something entirely different.
I’m not saying that campaign contributions , or groups getting together to pool their money in order to get their message out should be banned, but attempts to regulate such activity do not infringe individual rights. What is funny is that the 527 groups have gotten a lot of heat when this type of activity has more constitutional standing then the notion that individuals should be able to candidates unlimited amounts of money (in my opinion).
Now you may not buy all of this and that’s fair but then you need to explain why it’s not a legitimate point of view, why my “Interpretation” is not valid. More to the point you need to tell how, even if you don’t buy my line of reasoning I’m “insane” for thinking about the issue in this way.
There are few passages of the constitution that do not require “interpretation” because it was written to be a bit on the ambiguous side on purpose.
And this is all moot because if the constitution needs no “interpretation” then those who champion a “strict constructionists” should be looked at with suspicion because they are saying that we believe that the constitution should be interpreted this way and all other “interpretation” is not valid.
October 12th, 2004 at 10:22 am
BTW here is a longer eaasy on the subject with a bit more attention to grammer and such (but not a lot more [grin]).
http://www.therant.info/archive/000779.html
October 12th, 2004 at 10:42 am
Money issues aside, i’m referring to the limits on who can say what and when they can say it. No wonder it’s been dubbed the incumbent protection act.
Additionally, the constitution doesn’t grant freedom of speech. It limits the government’s ability to infringe on it.
I don’t buy that rights are invalid because they apply to groups instead of individuals. People pool their voices together to protest and take to the streets, for example.
No I don’t think money = speech. But money leads to a vehicle with which to express it (i.e., I pay for webspace to host my blog; or i give cash to a 527 to speak on my behalf).
October 12th, 2004 at 11:44 am
Rick,
I think you’re biggest problem is the idea that I can’t have aproxy for my freedom of speech. I can pay someone to say what I want them to say (let’s ignore mass media, let’s just say the guy has a loud voice). If I’m not allowed to pay him to speak on my behalf, you have restricted my right of free speech. Expand this analogy and you can see why campaing finance reform is wrong.
Also, groups do have rights. Freedom of religion, freedom of the press, and the rights guaranteed to the states are all rights that apply to groups.
October 12th, 2004 at 2:05 pm
“Money is not speech” has got to be the most facile argument I’ve heard in a long time. By equally compelling logic, flag burning laws should be upheld because fire isn’t speech, either. In both cases, the real issue is expressive conduct. General restrictions on how one may spend one’s money for ALL purposes are not speech restrictions, though they may be constitutionally suspect on other grounds. Restrictions on spending that relate specifically to protected speech are quite different. I can donate all the money I want to any charity, any for profit company, etc. – I just can’t donate too much to someone advancing a political cause. That’s not cool.
Returning to the linked post, where the hell did the author get the idea that Republican judges don’t respect the First Amendment and Democrat ones do? If anything it’s the other way around.
October 12th, 2004 at 5:00 pm
Oh come on, Xrlq. We ALL know Republican judges are big meanies who want to opress the Little Guy and lock up the Dissenters and stuff.
October 12th, 2004 at 10:18 pm
Matt,
How can you proxy something that is an inherent part of you? I know of no other right that can be “transferred” in a like manner.
If I’m not allowed to pay him to speak on my behalf, you have restricted my right of free speech. Expand this analogy and you can see why campaign finance reform is wrong.
First of all the courts have already said that campaign contributions can be regulated under the constitution, McCain Feingold didn’t change that at all, but let me answer your question.
Here is the text of the first amendment
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.
OK now what started this off is Say Uncle saying that it needs no “interpretation”. Right off the bat I see some thing that need to be clarified such as what constitutes abridgment of your speech? Or what constitutes free exercise?
If I box you into a “first amendment zone” is that prohibiting the free exercise thereof? But to my point, you can speak, you can write, you can even pay someone else to speak your words, but in order to be constitutionally protected it has to be your words and you have to cop to them (I’m Rick Dement and this is my message).
Now when I give money to a candidate he or she takes that money and runs a campaign with it, they don’t speak your words, nor do they say, these next few comments are Matt’s words and he paid me to say them. No nothing of the sort, in fact that candidate might say things you disagree with but you support then anyway because on balance they are close to your own thoughts on the issues. But they are speaking their own words and constitutional protection only extends to them insomuch as they are exercising their own individual rights. They are not in any way, shape, or form speaking on your behalf as an individual; they are speaking for you only in the sense that you are part of a group of people supporting the candidate. Again groups do not have constitutional rights, the constitution can only afford protection to individuals.
Again you all might not buy this, you might still think I’m dead wrong on this issue and that’s fine. But if your going to tell me that I’m not thinking logically or that the argument I’m making is unreasonable then I would suggest you are being a bit on the stubborn side. Paying someone to say your words is not at all like the relationship between you and a political candidate and to suggest that it is so requires a stretch of the imagination.
“Money is not speech” has got to be the most facile argument I’ve heard in a long time. By equally compelling logic, flag burning laws should be upheld because fire isn’t speech, either.
Mr. Xrlg, you’re being insulting, your example is not at all analogous and is a straw man. My argument is clearly based on the notion of individuals exercising individual rights. If an individual burns a flag then its protected speech (They may run afoul of the fire code and then the act can be made illegal base on a compelling state interest to protect property from burning). Money does not in any way buy speech, what it buys is an audience and the constitution does not guarantee an audience for your speech. You clearly don’t even comprehend the point I’m making yet you feel confident enough to insult the point I’m trying to make with a straw man argument.
You can use you money to advance any political activity you want to, you can buy your own ads, go door to door, buy a bull horn and stand on a street corner, make a window display, knock yourself out. I’m not interested in what is cool or un-cool I’m interested in the extent of the protection of the constitution, and where in the linked post does it say that republican judges don’t respect the First Amendment?
But giving unlimited money to a political candidate is not constitutionally protected, never has been ever even before McCain – Feingold.