JPM comments on a previous Hershblogger post and inspires another post (or two).
The following excerpt speaks to a very important point:
Recognizing government as incompetent does not carry us all the way to chaos. One needn’t postulate anarchy in order to object to a specific infringement on civil liberty as beyond the federal government’s constitutional power.
The First Amendment, in common with the rest of the Bill of Rights, is about restricting the power of government. The construct is, “Here, the government has no role in our lives.” The application has been insufficiently cognizant of that, but we’re only whores if we let our sense of justice override the idea of equality of opportunity in favor of equality of outcome.
If one aspires to equality of outcome, one must talk to a source much more powerful than the U.S. Constitution. Depending upon one’s inclination, the Creator and/or Big Banger him/herself would seemingly be the appropriate extension number. And favoring equality of outcome does not raise Constitutional questions, while also being quite attractive as written– who wouldn’t favor the equality of outcome where all are equally happy, healthy, and computer literate!
So this road takes us nowhere. Those who support freedoms (i.e., of speech) can, it seems, logically posit that, to talk about Constitution freedoms that are ostensibly part of the civil liberties extended to all, yet limited to the six Rupert Murdochs of the world, may meet the pin head-dancing of strict constructionists, yet practically prevent a gazillion more people from actually having access to those forms of speech than Rupert does.
So the discussion then goes to, wait a second, I only want to talk about certain kinds of freedom; the kind that can be bandied about by the elite– not those that actually affect the lives of the millions of citizens. Because if we give an inch that maybe certain liberties might require more than a “clear and present danger” as defined a century ago, who knows what kinds of ethical, as well as legal issues we’ll have to face.
That is why the construct must be separated from the application– and the construct of freedom can sometimes be defined as extending liberties as well as preventing governmental interference.
Thanks for the opportunity to voice an opinion– and for being able to ask whether a form of “free speech”– such as, that a candidate in South Carolina who is trailing in the polls days before the election should have constitutional protection enabling push polling and assertions that his opponent fathered an illegitimate, minority child?
Aspiring to equality of outcome is indeed an attempt to usurp the power of a higher authority. That aspiration is inevitably autocratic in application.
Principled equality of outcome has broad Constitutional implications. Most generally, it requires that we accept that freedom is granted by the government rather than that “we the people” have granted limited power to our government. Most obviously perhaps, it requires abrogation of the 10th amendment.
Statist attempts to endow all humanity with equal happiness and health, even when sincere, require ever more command and control. Asking equal happiness and health of a higher power would seemingly be asking for negation of free will.
Unless we all speak, think, and act identically in all social situations we cannot all have equal happiness outcomes. Without identical DNA and identical life experience to the molecular level, it is impossible to have equality in health. Even if it were possible, I can’t see how it would be desirable; neither could Kurt Vonnegut in his short story Harrison Bergeron
Hyperbole? Not if the phrase “who wouldn’t favor the equality of outcome where all are equally happy, healthy, and computer literate!”, is to be taken as written. I do wonder.
There are two different roads here; one is uncertain and often threatening. It requires active awareness to prosper or even survive. The other, the road to equality of outcome, is illusory. I’d agree it takes us nowhere.
On “elite” speech: I noticed no restriction on multi-billionaire speech in the last election, an ostensible major purpose of CFR. Was George Soros even inconvenienced? How is this abject failure of CFR an argument in its favor?
The speech that was prohibited was that of the gazillions of people who used to be able to contribute to political speech via the NRA or The Sierra Club. That is what has already been lost. How does this extend liberty?
If equality of outcome is the construct, then the application can only be totalitarian. This has been amply demonstrated by the construct of the constitution of the former Soviet Union as compared to its application.
On strict construction: If the Constitution doesn’t mean what it says in the context of the time it was written, then it is on its way to meaning nothing. Strict construction, in fact, is the best way to protect minorities from the tyranny of the majority. When the “living constitution” depends on what the meaning of “is” is; the defense of freedom rests on syntax and juridical solipsism.
The Constitution should only be changed by the mechanisms established to change it.
That we have demands for “moderate” judges is a plea for the appointment of those with whom we agree, not a plea for the appointment of those who would protect us from those with whom we disagree.
Think about it, would you ever ask your lawyer to draft a “moderate” contract?
Finally, the push polling should have been constitutionally protected. If there was libel or slander we have remedies. That is, we have legislation – not invented constitutional meaning.
3 thoughts on “Construct and Application – Opportunity and Outcome”
Two comments related to the following quotes:Aspiring to equality of outcome is indeed an attempt to usurp the power of a higher authority. That aspiration is inevitably autocratic in application.Principled equality of outcome has broad Constitutional implications.Finally, the push polling should have been constitutionally protected. If there was libel or slander we have remedies. That is, we have legislation – not invented constitutional meaning.Comments:Re equality of outcome, the quote was intentional hyperbole. It is hard to conceive of a Supreme Being seeking equality of computer literacy– for that would deprive the world of either Windows (the loss of which would make those questioning the existence of evil have to look harder somewhere else) or Mac/Unix (the loss of which would run contrary to God being all-loving!). So the blog’s quote is very cogent.Re libel and slander tort as a substitute for “clear and present danger”, if one maintains that no constitutional interference is required re last minute, maliciously manufactured, detrimental speech, then the same logic would extend to screaming fire in a crowded theatre; no constitutional limit would seem necessary, as the screamer would simply be exercising the freedom to move lips in a venue, voice, and volume of his choosing– and who could argue against that?The answer is, the next of kin of the persons trampled! Shouldn’t that unbridled “freedom” be Constitutionally protected? Not if the traditional definition of freedom of “your freedom to swing your arm stops at the end of my nose”! Who could object to abject lies for political gain, leading to an election by an electorate that was intentionally deceived? The answer is the next of kin of those who believe in free speech and free elections, not only unlimited speech or unlimited elections. And if we’re talking about a society or government without limits, when bored we can move to a discussion of odorless smells. . . Thanks again! JPM
There is of course a difference between “fire in a crowded threatre” and “last minute, maliciously manufactured, detrimental speech”. The later is political speech and the former is not. And this is both a difference and a distinction.
As the blog aptly instructs:There is of course a difference between “fire in a crowded threatre” and “last minute, maliciously manufactured, detrimental speech”. The later is political speech and the former is not. And this is both a difference and a distinction.Comment:What if one screamed, “Democrat on fire in row 3!” in a crowded theatre? Should this be viewed as political speech? It seems, as Hershberger sagely has said, there is a difference between intrepreting and constructing. Complicating this is interpreting the Constitutional intent to matters that simply didn’t exist at the time of our forefathers. Strictly working to interpret words two centuries old to current issues seemingly provides the most congruent foundation for our future. Manufacturing intent in the name of some unspoken thought that Jefferson must have had, but neglected to bring up to his Constitution-drafting buddies– i.e., “privacy” or “reproductive rights to name two– is what leads over time to the mismash of logic and politics. And what we seem to be witnessing is in such mismashes, the deep pockets ultimately prevail, and future generations are left to pick up the pieces. So the “Democrat in row 3” question is not entirely (albeit largely) silly. Interpreting such issues of sillyness are the reason Supreme Court was viewed as necessary. And asking those trained as attorneys to think logically rather than adversarily almost inevitably leads to mush, especially when they hang out with incredibly rich cronies– be it shooting birds in Wyoming or shooting tequilas in DuPont Circle.Thanks again.P