American Political Orthodoxy at the Edge of Doom

It was no surprise yesterday when the Supreme Court upheld the second amendment to the Constitution. But it was stunning that 4 of 9 justices dissented. Four Justices of the United States Supreme Court believe they can throw away part of the Bill of Rights just because they don't like it.

Maybe you don't like the "right to bear arms," either. Fine. The Constitution has a built-in mechanism for change. So change it. But change it within the rules — not by having the Supreme Court rule the Constitution unconstitutional.

A 5 to 4 decision means we're one liberal president away from a Supreme Court that does not use the Constitution as a means of judging law, but their own subjective and transitory opinions as a means of judging the Constitution. The amendment process is admittedly difficult, though it's been done 27 times. But on the Supreme Court, 4 of 9 think they can amend it by tossing out what they don't like just because they're "supreme."

But Supreme Court power comes from the Constitution. As they diminish the Constitution, they diminish their own power.

Many countries have had documents similar to our Constitution, but the Stalins of history hardly noticed. They simply did what they wanted to do. If a nation's core document can be fundamentally altered on the whim of an ultra-elite, "Mere anarchy is loosed upon the world."

Free Speech

You would think that, of all institutions, The New York Times would strongly side with those who favor a strict interpretation the First Amendment's freedom of speech clause. You'd be wrong.

In a recent editorial, the Times' Adam Liptak writes that the United States view of speech is aberrant among civilized nations. Many conservative commentators and bloggers have accused Liptak of siding with those who believe the U.S. should join most other countries in suppressing "hate speech." He doesn't come out and say so, but that does seem to be the gist of the editorial. He gives the pro-free speech side a few lines, but most of the opinion piece is dedicated to those who think the United States should give government more authority to regulate the expression of political and religious opinion.

"Many foreign courts have respectfully considered the American approach," he wrote, "and then rejected it."

Nice of them to be so respectful, but their rejection of "the American approach" is dangerous to themselves and to the world. In Canada, Germany, or Israel, you could go to jail for denying the holocaust. In Canada and Germany, holocaust denial is dramatically rising in spite of their governments' attempted control. If I had a propensity to doubt the holocaust — I don't, but if I did — those laws would make me more likely to deny it, not less. A position looks weak when its proponents have to call out the police to stifle opposing views.

The second problem is moral. When governments try to control speech, they're really trying to control thought. It's hard to imagine a more fundamental intrusion.

The third problem with regulating "hate speech" is defining it. It's chilling to realize that in every instance, the definition turns out to be whatever the ruling class wants it to be. The ruling class might be a simple majority of people, or people with more money or better connections. It doesn't matter. It's still tyranny. The only way to avoid it is by allowing as much freedom of speech (especially political speech) as possible. (The only exceptions should be the traditional ones about the likelihood of imminent violence or about national security. But the exceptions must be narrowly defined and closely watched.)

Free Speech and Hate Speech

The "Fairness Doctrine," one of the most horrible government intrusions on free speech ever in America, was eliminated during the Reagan Administration. It required broadcasters — not newspapers or film makers, just broadcasters — to give equal time to opposing points of view. Nancy Pelosi wants to bring it back.

Somehow such things still surprise me. I grew up hearing liberals espouse the virtues of free speech, often in areas the Constitution's authors would never have dreamed. But here is uber-liberal Nancy Pelosi wanting to restrict political speech, especially the part critical of her and her party.

Imagine Rush Limbaugh one day discussing airplanes hitting the twin towers of the World Trade Center, eventually bringing them down. Under the "fairness doctrine," who would decide if the station must then give equal time to someone who thinks President Bush had bombs planted in the lobby? Do the courts decide? Should a special agency be formed?

Government officials are no purer than the rest of us. How often might they require equal time because they want their own positions to be better represented? How often might they attribute bigotry or hate to people whose speech they simply disagree with? It's hard for any of us to fully appreciate the influence of our own prejudices and preconceptions on the decisions we make. The framers of the Constitution were wise to put such power out of the government's reach.

Democracy is about trusting the people to make choices, including who to believe and even to whom we should listen. So let the people decide which arguments should be taken to heart. We don't need Nancy Pelosi to decide for us.

Neither does the Constitution need the nine justices of the Supreme Court to decide which parts of it may now be discarded.

Posted: 6-26-2008
Note: At original posting, all links were active.