I think it all depends on what the Amendment says and how strictly they try to enforce it. I think an Amendment that banned the sale of nude pictures of anyone, even in a non-sexual context, would be as doomed as Prohibition. On the other hand, I think there is a large area of pornography that the vast majority of people would agree is obscene, including animals, children, torture, and so on. In fact, that all but the most fanatical free speech advocates accept the banning of child pornography without concern that it will lead to their Playboys being confiscated suggests that at the extremes, anyway, there is fairly broad agreement on what's so nasty that no nice person should ever want to even dabble in it.
In many cases that is true. I think we are in agreement on what the Constition allows the people to do. I have to admit, it's nice to see someone properly pointing to AMENDMENTS for a change instead of using their standard interstate commerce/general welfare justification for Federal meddling.
Oh, absolutely. But on the flip side, I think the 14th Amendment (and how it's been interpreted) broke the natural vent that the Founding Fathers allowed, which was to allow states to pass lows covering a smaller segment of the population that would not be acceptable at the Federal level for everyone. And that's how I think these things need to be handled. While a Federal anti-pornography law is probably not a good idea, I think it's reasonable to give smaller communities, state or local, more control over such things. And I should point out (again, as explained in that Frontline), the Federal anti-pornography actions do ultimately come down to local community standards, not some universal federal standard.
We probably agree here as well, generally speaking. But where you think the line should be drawn? That is, at what point do we say "These people are no longer nice and what they are doing is not good...now they are running wild"?
It's drawing that line in the muddly middle where I think democracy, slowed through the structure of a republic, needs to have room to play these things out. But I do think we can tell, by looking a the obvious extremes, where the balance of power is. When I see a woman on a public train, with a toddler and a shirt that says "New F***in York" (no asterisks), clearly the balance has tilted toward the crude and freakish.
Very well stated. I think the Founders developed a pretty good method for addressing this dilemma. A court with a large degree of independence, though still ultimately accountable to the people (Presidential appointment, for example) is a good (but not perfect) way.
Correct, but the Founders also gave much more rights to the States than they currently have. I doubt the Founders would have had trouble with Kansas banning pornography and California adopting an anything goes stance (much in the same way they accepted states that banned slavery and states that allowed it) but just as much as you might think it's a problem having Federal prosecutors meddling in pronography prosecutions (it's the only effective way to reach across state lines), it's just as much against what the Founders intended when the Federal judiciary steps in and invalidates state-level anti-obscenity laws. Yeah, I know all about the 14th Amendment and how it's interpreted but I think the founders started the 1st Amendment with the word "Congress" for a reason.
Yes, protecting fundamental rights is importantant. But so is giving people say over the standards of their community and some control over the quality of life there.
For the most part I would agree. Most of the examples you mentioned (kids, animals) involve a lack of legal consent, so even a staunch libertarian would agree with banning them. I suppose that torture would be a little more contentious, since it's conceivable that some actors might voluntarily submit to being abused. Think of "Fear Factor" or mixed martial arts competitions.
...But on the flip side, I think the 14th Amendment (and how it's been interpreted) broke the natural vent that the Founding Fathers allowed, which was to allow states to pass lows covering a smaller segment of the population that would not be acceptable at the Federal level for everyone. And that's how I think these things need to be handled.
I find a federalist approach to be much more palatable than a national ban, that's for sure. Personally I don't believe states or localities should be involved in regulating what we typically call "vices" but I can respect your resistance to using the 14th to prevent them from doing so. Still, I think the 14th should play some role in protecting the rights of the people from abuse by the states.
...It's drawing that line in the muddly middle where I think democracy, slowed through the structure of a republic, needs to have room to play these things out.
I agree with that so long as the matter in question is in the public arena...meaning visible to the public or immediately affecting the public. If the matter is private, I don't think government at any level should get involved as long as rights aren't being violated.
So a law prohibiting profane t-shirts in public is one thing. A law prohibiting the possession of profane books is another matter.
...Yes, protecting fundamental rights is importantant. But so is giving people say over the standards of their community and some control over the quality of life there.
Sure, but relying on the law is not the only way to promote community standards and to control the quality of life. Building strong community institutions, using persuasion and public awareness, and excercising your right to free association are all ways to promote the good things and resist the bad things in a community. Typically, I believe these methods are superior to government solutions, even at the local level.
Consider racism, for example. The law has played some role in addressing racism in the public sphere, but I'd say the bulk of progress in race relations has come about from persuasion and cultural change from institutions outside of the government. That's not to say racism has been eliminated completely, but it's certainly been greatly reduced over the last 50 years and can no longer be expressed openly without serious consequences. Yet no law had to be passed against racist speech or racist private behavior....