That famous pre-MTV colonial musical group, "Banned in Boston"
performing live before the Continental Congress
--Intaglio etching courtesy of the Ideologue Society for Historical Revisionism
Posted on 07/19/2002 3:38:08 PM PDT by aconservaguy
I hope to spin-off of a recent discussion of censorship the issue of liberty, morality and order.
What are the limits of each? Are there any limits to a person's freedom? Or can the community in which he lives enact prohibitions -- moral prohibitions -- against things like pornography, as an example -- or any things it doesn't like.
Must moral ideas and standards -- and the upholding of them -- be at the mercy of liberty, or vice versa, at all times? Can there be a middle ground? Is an objective morality needed for an orderly society? To have liberty, must order take a back seat?
To have order, must liberty be curbed? Or is it a gray area, with one not superseding the other?
Finally, do majorities have the right to "impose their will" upon society, or is majoritarianism an implausible, dangerous doctrine?
Here's a link to the original thread
Point taken. Now, given that, how does considering morality an absolute and constitutionality relative and subjective help to advance and preserve the idea of a Contitutionally limited Republic? It takes but a subtle semantic twist of the wrist to go from socializing morality to moralizing socialism.
Sometimes, seemingly conflicting concepts are actually true at the same time. Regarding our Constitutionally limited Republic, there is the way it actually functions, and there is the way it actually is. How it is should depend on its original intent. That, however, is clearly open to interpretation. How it functions, is as much if not more about who does the interpreting than about what it actually is.
That applies to morality as well. There are "the laws of nature and nature's God" which tell us how it IS. But, in practice, it depends on who is doing the defining.
In our system or gov't "of the people, by the people, for the people", the Constitution keeps us only as protected as the knowledge of those doing the interpreting (which depends on the understanding of the people doing the voting).
I do not believe in moral relativity or Constitutional relativity for that matter. But I do believe in functional relativity. That's the way it works in practice. We need to exercise our freedom of speech to persuade the masses to believe in the original intent of the Constitution, absolute morality, etc..or it won't matter what morality really is, or what the FF's intentions were, or what the Constitution really means.
Regarding going from socializing morality to moralizing socialism (clever, btw) that's an excellent point. Aren't we already moralizing socialism but not socializing morality? I don't know, maybe that's how we got around to moralizing socialism -- by socializing morality -- but currently, we are in the later stage, not the former.
Honestly, most of these issues about morality should be addressed and solved in the private sector. No laws required. (It used to be called social taboo I think. Good old fashioned shame.) The laws required are local laws. But to take the position that the gov't has no role ever, at all, in maintaining the desired moral, social norms of a community, is to deny it's people the freedom to organize and assemble a community as they see fit (within the Constitution). That isn't freedom, that's anarchy.
Yes- the state defending the rights of the victim vs. the accused. Defending individual rights is one of the delegated powers of government I was talking about.
The government must also defend and uphold the defendant's Sixth Amendment rights.
Discover How Judges that Preside
Over Jury Trials Routinely Violate the Constitution.
"As a practical matter, I don't know how this is different from the beginning of a trial, when you tell the jurors you have to follow the law as I state it," Warren said. "I just won't give [the disapproved instruction]." California Supreme Court Don't Tell Jurors to Rat on Each Other
The above statement in bold told to jurors, since 1894 has been in violation of each Defendant's Sixth Amendment right to an impartial jury. The Sixth Amendment reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Prior to 1894 judges routinely told jurors that they were to judge the facts and the law. ...And the law. For the defendant, a jury that judges the law upholds his right to a jury that is not partial for the government. It is the defendants right to have a jury that judges the law as well as the facts.
To judge all facts in the case includes judging the most critical fact -- that a person was charged with breaking a certain and specific law or laws. Without that there can be no case to take to trial. It is the primary and most critical fact for which the government makes its case. Pressing criminal charges against a person gets the process in motion. The reason it must be the prosecution that gets the process started is because the suspect/defendant is innocent. Innocent until proven guilty in court.
Thus it was not the person's/defendant's actions that initiated force against any person or their property. For, until the defendant has received the verdict it is not known whether the arresting law enforcement officer acted in self-defense in correctly upholding the law or unknowingly acted with initiation of force while attempting to uphold the law. That is, the LEO making the arrest had reason to believe the person broke the law and then the DA (district attorney) pressed charges against the suspect. Yet the LEO/DA/government don't know for certain that the suspect/defendant broke the law. That detail will be answered by the jury.
What does it mean when the jury's verdict is an acquittal? It means the charges against the defendant were in error. That is, the defendant never broke the law he was charged with breaking. The law has been judged by the jury to have been wrongfully charged against the defendant. The jury says, "No. The law does not apply to the defendant breaking it. The law only applies in that the defendant abided the law." The law has been deemed to have been wrongfully applied -- the law does not apply to the defendant.
Guess what? That's what jury nullification is -- the jury discovers the same thing. That is, with jury nullification the jury decides that the law does not apply to the defendant -- the law had been wrongfully applied.
As per the Sixth Amendment the defendant has the right to an impartial trial wherein the jury judges the law. For there is no way the jury can avoid judging the law. The jury has only two choices, 1) the law was correctly applied/charged against the defendant, or 2) the law was wrongfully applied/charged against the defendant.
It is each judge's job responsibility to ensure that the defendant's Sixth Amendment rights are protected. The primary key to each trial is the laws that the defendant is charged to have violated. It is by way of the facts presented by the prosecution and the defense during the trial that the primary key -- law as charged -- is judged to have been correct or in error. The facts presented by the prosecution and defense are secondary. That's the nature of cause and effect relationships. When one thing cannot exist without the other first being present the first thing is primary and the effect of that is secondary.
It is accepted that the defendant acted in a manner that appeared to have broken the law and was one factor in the LEO's/DA's/government's judgment that the person's actions violated the law. It cannot be misconstrued that the defendant's actions are the primary cause. For the defendant is deemed innocent and only suspected to have broken the law. The primary cause is the LEO's/DA's/government's judgment to set the court process in motion -- not the suspect's actions.
As per the Sixth Amendment an impartial jury favors neither the government nor the defendant.
Each jury that each judge has failed to inform the jury that they are to judge the law as well as the facts as they pertain to the case/trial has caused each of those juries to favor the government over the defendant.
Since 1894 each judge that has presided over jury trials has routinely violated the constitution. Concurrently, each defendant in each of those trials has had his or her Sixth Amendment right to an impartial jury violated. ....Violated by the judge presiding over the trial.
At issue in People v. Engelman, 02 C.D.O.S. 6411, was California Jury Instruction 17.41.1, which judges give before deliberations. It directs jurors to advise the court if they suspect someone is refusing to discuss the evidence or plans to disregard the law. California Supreme Court Don't Tell Jurors to Rat on Each Other
As shown ealier the jury cannot disregard the law for it is the law that is the primary key being judged.
"Unless jurors are informed of their solemn responsibility to report misconduct, I predict that many judgments will be reversed simply because the trial judge never had the opportunity to cure the problem." California Supreme Court Don't Tell Jurors to Rat on Each Other
That is trivial compared to the fact that virtually every judge presiding over jury trials routinely violates defendants' Sixth Amendment rights. Now there's a valid reason why many judgments will be reversed. Reversed simply because the judge violated the defendant's Sixth Amendment right to an impartial jury when he instructed the jury to favor the government over the defendant.
Religion plays a big role in keeping society moral. I believe that is why it is the first freedom listed in the BofRights. Morality mattered to our Founders. That's why the left is so hostile to religion. Communities cannot favor a religion, that's unconstitutional, but they can favor a morality. If they can't then where's the freedom?
Do you understand that, that is a moral belief which you are attempting to impose on society in general?
Religion plays a big role in keeping society moral. I believe that is why it is the first freedom listed in the BofRights. Morality mattered to our Founders. That's why the left is so hostile to religion. Communities cannot favor a religion, that's unconstitutional, but they can favor a morality. If they can't then where's the freedom?
The argument relies on the premise that morality will only exist by legislation. The absense of morality as a consideration or motivating factor is not immorality, but amorality. When we write our laws, the appropriate question is not "What does the Bible say?" but "What does the Constitution say?". Frequently they will provide the same answer. Sometimes they do not. If we see that as being in error and seek to rectify it by reinterpreting the Constitution to get a different answer, then we might as well discard the Constitution and replace it with the Bible and be done with it. Some things are between you and God, and some are between you and Ceasar, and they can't always be the same.
Some other issues, though.
Allow local censorship and it will be extended to material judged objectionable on the grounds of ethnic sensitivities. The older argument that political speech was to be separated from pornography has been complicated by the balkanization of society into many ethnic, cultural and sexual minorities, each of whom is "offended" by something. For many today the personal is the political and vice versa. The old "community" offended by pornography has to face other groups offended by attempted bans on pornography and the ideas behind it.
What overturned the older system was the "Hitler argument" together with the postwar rise of the educated, and rather self-indulgent, metropolitan, upper middle classes and the massive culture industry. The older, prewar, provincial America didn't have any trouble with the older system of community review and supervision. Economic centralization and cultural standardization opened the door to greater freedom of expression. When what New York, Los Angeles, or Washington thought became the standard, local elites and publics lost their nerve.
Also, there's bound to be great debate revolving around what "liberty" means. Is it always to be personal freedom for the individual or does it also involve the rights of communities to govern themselves?
At its inception the American Revolution was a struggle for community or group liberty ("Taxation without representation is tyranny"). In retrospect, it's come to be seen as a struggle for individual liberty ("Life, liberty and the pursuit of happiness").
The Anti-Federalists have come to be seen by many as champions of liberty, but their liberty was more community or state liberty than personal or individual freedom. In the country's early years the larger nation provided a way of escaping the onerous burdens of state and local governments. Those used to the present-day federal behemoth don't always appreciate that.
The danger of purely individual liberty is that it's quite compatible with an imperial order imposed from above which in the name of personal freedom weakens all intermediary and independent institutions that stand between the individual and the government. The danger of group or community liberty is that it is used and abused by some very nasty regimes in defense of some very heinous practices.
Also, every system of laws, including libertarian ones, implies certain moral principles. If you exclude one person's moral principles from having any effect on the laws, has something of the right of self-government been lost? Doubtless some people's ideas must be excluded as being abhorrent, but the question still remains.
Today's conservatives and libertarians seem to be very troubled, imperiled even, by this conflict between two ideas of liberty. Greater freedom for the state or community does not mean greater freedom for the individual. But it's clear that greater freedom for the individual may actually weaken individuals and society if freedom and choice are without consequences.
Today's individuals are far more likely to use their liberty in ways that go against the standards of morality that once predominated. Immoral conduct was once accompanied by censure and disapproval, by rejection or failure. For many today, "freedom" has come to mean the absence of such censure and disapproval. Without social condemnation and sanctions against immorality, questions of morality are more and more pushed into the political realm in spite of our pronounced unwillingness to deal with such questions by using state power.
Umm... NO.
Well said. The Founders recognized the moral and religious foundations to our freedoms and rights.
"We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other." -John Adams, Oct. 11, 1798 Address to the military
So why don't groups have greater rights than individuals?
To the extent that religious freedom is protected, laws are actually less likely to need to address morality, rather than more likely.
I do not advocate "reinterpreting the Constitution to get a different answer" but, in practice, that is what has happened. Unless "we the people" protect and defend the Framers intent, it will get misinterpreted. That is the functional relativity that I observe. It is protected a great deal by the difficulty our Framers placed on changing the Constitution, on replacing judges, and the whole balance of power.
The Framers original intent regarding income tax would have guarded againt socialism better.(see section 9 No. 4) But Congress passed the law, it was declared unconstitutional by the SCOTUS, and so Congress amended the Constitution to fit their will. It can happen. It takes a long time.
Zon, Zon, Zon....we are hopelessly appart. I am ABSOLUTELY, POSITIVELY NOT saying gov't can mandate a religion. But gov't can address morality.
Exactly which religion do you see as mandating morality? Or, is it only religion in general. Are atheist immoral or at least always amoral? Are the religious the only people who care about morality?
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