Posted on 11/11/2003 11:43:08 AM PST by farmer18th
Dear Mr. Pryor:
Your actions with respect to Judge Moore confuse me.
Is "Thou Shalt Not Steal" offensive to you? (I'm glad I don't own property in Alabama)
Is "Thou Shalt Not Murder" problematic for you? (I'm glad I don't live in Alabama)
Is "Thou Shalt Not Commit Adultery" hurtful to you? (I'm glad you don't know my wife.)
Is "Thou Shalt not Bear False Witness" repugnant to you? (I'm glad I never had to seek justice in your state.)
Is "Thou Shalt Have no Other Gods Before Me" distasteful to you? (What with lightning bolts and all, I'm glad I dont worship next to you.)
We are a nation of laws, Mr. Pryor, and not of men. I'm just confused as to which laws you follow.
Prudential Insurance Company v. Cheek (1922) 259 US 530 "The Constitution of the United States imposes upon the states no obligation to confer upon those within its jusrisdiction the right ot free speech."
Excellent work. The other cases you cite are interesting, but either they predate the 14th Amendment or concern BOR amendments besides the 1st Amendment.
I've already given you a quotation from Gitlow, which I'll admit I was careful to edit. Here is the same quotation again along with its following sentence.
For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 , 42 S. Ct. 516, 27 A. L. R. 27, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.So for a span of three years the SCOTUS was on record as holding that the 1st Amendment does not apply to states. For a span of at least seventy-eight years now they have been on record as holding that it does.
Justice Sanford
Here is the "incidental statement" in Prudential, an employment law case wich only peripherally touched on free speech issues.
But, as we have stated, neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about 'freedom of speech' or the 'liberty of silence'; nor, we may add, does it confer any right of privacy upon either persons or corporations.Let me quote now from an article about the life of Justice Sanford (a Republican), who wrote the opinion in Gitlow.
PRUDENTIAL INS. CO. OF AMERICA v. CHEEK, 259 U.S. 530 (1922)
While other justices on the bench sometimes eclipsed the Tennessean's activities, Justice Sanford's greatest impact on American Constitutional law came in the area of civil liberties and freedom of speech and the press. During the eras surrounding World War I, a number of questionable laws had been passed and many citizens imprisoned in the interest of "national security" under then-President Woodrow Wilson, which left a lot of questions unanswered regarding freedom of speech and other civil rights. Before President Harding's administration became embroiled in scandal, he had cleared American cells of most of World War I's political prisoners by giving the people presidential pardons. While it resolved individual cases, the laws under which they had been convicted had been more than questionable and allowed states to establish dangerous precedents that seemed counter to the U.S. Constitution's Bill of Rights. State Attorneys General wanted decisions from the Supreme Court on the laws and Justice Sanford found himself in a very active and sometimes controversial role on the bench. His greatest judicial work would be on what is known as the "incorporation doctrine".I think this article makes it clear that the extension of the 1st Amendment did not come 'out of the blue' but was triggered by outrageous infringements at the state level.The guarantees of the Bill of Rights originally applied only on the federal level. The controversy leading to the War Between the States demonstrated that all states did not guarantee personal fundamental liberties and many issues surrounding it had remained unresolved. As American entered the 20th century and started taking a leadership role in world affairs that brought the nation into World War I and other international crisis, many Americans loudly protested the involvement, which led to states passing repressive laws that infringed on the Bill of Rights' personal guarantees. Many of the laws were directed at newspapers and other media outlets, who editorialized against U.S. involvement over seas. Some publishers had been arrested on charges of sedition and treason resulting from the passage of certain state laws and no case had ever been tried beyond the lower courts.
While the Fourteenth Amendment was generally thought to have supposedly ended such situations in its assertion of fundamental liberties through due process, there was no concrete ruling that established it as such and attorneys, arguing for their respective states, could easily evade it in court.
In a series of cases, Justice Sanford and the Supreme Court decided to issue a number of decisions where the Court would have to balance both state and national police powers against individual rights of citizens. Sanford first articulated the "incorporation doctrine" in two major cases. In the 1925 Gitlow vs. New York case concerning freedom of speech and the press, Sanford wrote in his decision.
"The First Amendment's freedom of speech and press were fundamental to personal liberty and protected from state infringement."While the First Amendment had been a part of the Bill of Rights since its adoption in 1791, the 1925 case was the first ruling in history that established the rule free expression was protected under the Constitution's Fourteenth Amendment's "Due Process clause".
Anyway, good research on your part. Now you can brandish Prudentential and its 3-year existence as precedent the next time this subject comes up.
Do you think that those colonial, pre-constitution, laws which you quote should be revived today?
Fundamental rights (can) should not be abridged by either the state or the feds. We undoubtedly agree there.
The problem with incorporation is that it never ends. The SCOTUS never contracts precedent, it always expands on it. The inevitable result is culture wars among the citizenry because the losing side in whatever case is being heard feels as if they and their elected legislators have been shut out of the debate.
There are fundamental rights and then there is liberty. One is granted by the Creator and guaranteed by the Constitution of the US. The other is a matter best left to the states, the citizens of those states are most enable to define the limits and extent of liberty. Not 9 isolated judges who go to work in their bathrobes.
And there you have it.
Such a change would require bipartisan support. How would you convince Democrats that this was not anti-poor? Hell, I'm as Republican as one can get and I'm not convinced.
The first step towards convincing anyone, is by frankly discussing the problem, as we are doing. There are a great many people, who are very disturbed at what they perceive as a dumbing down of political debate in America; a pattern, where more and more the politicians appeal to the least qualified voters and the voters with the most to gain by voting a certain way. We need a real soul searching in America, as to how our institutions can be expected to endure, with the obvious deterioration in the quality of our political discourse.
One of the most graphic examples of what I am discussing may be provided by comparing the intellectual content of political campaigns and political speeches in the early days of popular suffrage--that is shortly after the Jackson era--and those today. If you go to a library with sufficient archives and start reading the campaign offerings in the 1840s & 1850s, for example, and comapre them to the intellectually naked, 30 second sound bites of today, you--as a thoughtful man--will not fail to be struck by my point. You may propose to simply live with it, but I am still idealistic enough to believe that something can be done about it. Hence my proposals. (Universal Suffrage--Threat To Liberty)
William Flax
Fundamental rights should certainly not be abridged by any government bodies. That is axiomatic. The questions are: what are the fundamental rights, how do we ensure they are protected, and by whom?
If a city government violates the rights of its residents (or non residents) by confiscating their land without process or compensation it is natural for the aggrieved party to go to a higher authority, such as a county or state prosecutor, for redress. Likewise, if a state violates a right through its laws, redress may have to come from a higher authority.
The problem with incorporation is that it never ends. The SCOTUS never contracts precedent, it always expands on it. The inevitable result is culture wars among the citizenry because the losing side in whatever case is being heard feels as if they and their elected legislators have been shut out of the debate.
"Precedent" is the judicial equivalent of the constitutional "original intent." It asumes that each decision of the court is valid and binding until specifically overturned, the equivalent of amending the body of interpretation. It is good and right that the SCOTUS respect its own precedents, even as all other courts in the land must respect them. But it is wrong to say they are never overturned. Many opinions decsions have been overturned or altered. Gitlow overturned Prudential, for example.
No one is shut out of the debate. Even the losing side gets to say its piece. The fact that we are having this discussion here and now is clear that constitutional issues are open for discussion.
There are fundamental rights and then there is liberty. One is granted by the Creator and guaranteed by the Constitution of the US. The other is a matter best left to the states, the citizens of those states are most enable to define the limits and extent of liberty.
I would number liberty as among the fundamental rights. Along with the other rights it is the duty of every level of government to respect and protect liberty. Should the definition of "freedom of speech" be different in New Hampshire from the definition in Vermont? I would say that to a slight extent it is legitimate for different areas to have somewhat different definitions. But there should be a base level of rights which are guaranteed to all citizens of the U.S. I believe, and I think the SCOTUS also believes, that the BOR (minus amendments 3, 7, 9, and 10) applies to all citizens and restricts all bodies of government.
Not 9 isolated judges who go to work in their bathrobes.
Who should interpret the U.S. Constitution? Nine officers in uniform? One elected official? The 525 members of Congress? Somebody has to do it, there has to be some mechanism for ensuring that lower courts apply laws in a consistent manner and that legislatures and other governmental agents do not act unconstitutionally. The consensus of the republic for two hundred years now is that SCOTUS is the correct body to perform this necessary action.
But isn't Judge Moore a judical activist to the highest degree?
Cite a case Diogones. Moore has a reacord and Alabama has a Constitution.
Was Marbury v MAdison judicial activism?
Roe v Wade?
Lawrence v Texas where stare decisis was ignored and European mores were cited?
Doe v Bolton?
The ninth circuit on a daily basis?
Moores's main activism has been in the area of deeds and remarks rather then in the area of judical opinions, to the best of my knowledge. I will take a look at his printed opinions if I can find any.
#510: Lawrence v Texas where stare decisis was ignored and European mores were cited?
#505: The SCOTUS never contracts precedent, it always expands on it. The inevitable result is culture wars among the citizenry because the losing side in whatever case is being heard feels as if they and their elected legislators have been shut out of the debate.
So precedents are bad when you don't like them and good when you do. It sounds to me like you don't care what the mechanism is or what principles are involved so long as the outcome is the result you like.
Was Marbury v MAdison judicial activism?
Yes, it was. The Constitution as written left out a procedure for review. There is clearly a need for review. The SCOTUS created that function, with the acquiescence of the Congress and the President. Just because something is not mentioned in the Constitutional that does not make it unconstitutional.
[The Constitution does not explicitly authorize many existing functions and departments of the federal government. Not to get into another debate, but the Air Force is such an example.]
Why is it that this reminds me of Otter's speech to the Greek Council in Animal House?
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