March 31, 2005
What does the Constitution restrict?
I surfed over to Townhall.com this morning to get my Larry Elder fix (more Schiavo stuff), and came across this little gem from Alan Sears.
Alan is railing against a recent judicial ruling that found the state cannot regulate hard-core pornography that depicts such abhorrent practices as rape or murder. While I personally think any video of that nature is sick, perverse, and the same holds true for those who would watch it, I don’t see the justification for the state to intervene here. Alan, of course, disagrees. Quoting the ruling:
Judge Lancaster opined that the Lawrence ruling could “be reasonably interpreted as holding that public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual sexual conduct even if that conduct is deemed offensive to the general public’s sense of morality.â€
Which sounds like a pretty reasonable thought to me. Alan seems to think, however, that the public’s sense of morality is perfectly able to override free speech.
The First Amendment to the Constitution protects free speech, the Fourth Amendment protects against unreasonable searches and seizures, and the Fourteenth Amendment promises due process and equal protection under the law. No author of the Bill of Rights could have conceived it would be stretched and reshaped to protect obscenity. One after another, activist court interpretations have eroded the original intent of these amendments to the present case, in which Judge Lancaster ruled that privacy rights created out of thin air trump “the general public’s sense of morality.â€
…
Regardless of the language or rationalizations employed, the courts are overstepping the bounds set for them by the very Constitution they claim to uphold. These judges are legislating from the bench despite the fact that creating law and new rights is not the job of judges. The Constitution endowed Congress and the states with the powers to make laws, including obscenity laws. The job of the courts is to interpret the laws impartially in accordance with the Constitution, not to forward agendas that undermine the public good.
Alan asks whether the founders envisioned a state where such pornographic materials existed? Truthfully, I suspect they would consider such materials just as disgusting as I do. But the question is better stated as, “Did the founders of this country believe that the Constitution protects government or the individual?” The answer to that question is clear.
Alan Sears believes that the state has the right to restrict individual behavior, and that individuals have to prove a Constitutional basis for the right to be left alone. This is opposed to what the founders intended. The founders believed that all rights are held by the individual, and that the state has to show a compelling reason and jump through a lot of hoops to do anything that restricts the liberty of the individual. Those hoops were a hell of a lot more restrictive than simply a law by Congress.
I don’t believe that the sort of hard-core porn mentioned is something that anyone should watch. But I am not going to substitute my morality for something they do that does not affect me. The “right” to privacy may not be explicitly guaranteed by the Constitution. Does the public’s sense of morality entail that private actions between consenting adults can be restricted by Congress? I don’t see that in the Constitution either. In fact, I would maintain that the First and Fifth Amendments provide a much stronger legal case for the right to privacy than anything in the Constitution justifying restrictions upon it.
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Brad:
I agree with everything you wrote in this post but I’d like to add one other thing and get your take on it. I keep hearing people say that a certain right (privacy for example) is found nowhere in the constitution.
I would argue that citizen’s rights are not enumerated, the government’s powers however are. to further bolster this point, take a look at the Ninth and Tenth Amendments:
Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Sadly, I have heard people such as Robert Bork, Hannity, Limbaugh, and even Larry Elder say that unless a right is spelled out in the constitution, the individual does not have the right. Robert Bork recently said on Sean Hannity’s radio show that the constitution has no guaruntees to the right to commit sodomy. Thank goodness his appointment to the Supreme Court was defeated.
How can intellegent people overlook these 2 very important amendments? If every right was enumerated by the constitution, it would be thousands of pages long!
This sounds like the inverse of one of Rush’s refrains: Democrats get weirder when they are not in power. Apparently “conservatives†are ill-equipped to wield power without a heavy moralistic mallet.
This is one of those ambivalent issues for me. My one problem with government trying to “censor” is that it’s implicitly doing so for your own good. Government is protecting you. Well, that opens the proverbial Pandora’s box: just what else might government try to protect you from?
Government is trying to protect us from having to save for retirement, for example, at a cost of 12.4% of every paycheck. Government has tried to protect us from poverty, but Johnson’s Great Society has cost us $2 trillion and done nothing. It is technology that has improved the “plight of the poor,” not government.
However, the Tenth Amendment does empower states a lot. Notice it talks about “powers” and not “rights,” so it’s quite possible that a state can do something about “obscenity” or even sodomy. Bork is right, IMO, insofar as saying there’s no Constitutional protection for sodomy; it’s something that could be reserved to the state. If you don’t like a particular state’s laws, you can move to another state. Or you can work to repeal those laws, which is a lot easier at the state level than federal.
The First Amendment was meant to be a restriction only on the federal government, after all. It’s just that courts started applying it to state governments too (which was tradition anyway, as a lot of state constitutions had provisions much like the Bill of Rights). Even so, courts have determined “obscenity” isn’t protected because it isn’t considered “speech.” Miller v. California defined the test for obscenity, and it’s not so much for home movies as it is for, say, someone putting up a billboard. What about a billboard, sitting right out there in public, with lots of vulgar words and sexual imagery? Isn’t that “freedom of expression”?
I think a much different approach to the topic of free speech would not involve Constitutional revue while at the same time hold the “smut mill†we call Hollywood accountable. This is a tough one because it requires theater goers to refrain from going to see movies that contain excessive profanity, sexual content, excessive violence or any number of perversions.
Make it simply a matter of walking out at that point when the movie, one that up until that point had been acceptable, and demand a refund. If enough people will follow through with this simple policy of enforcement through natural demand rather than judiciary rule then Hollywood would have to bend to the will of the consumer. As it is, the consumer is wallowing in filth and demanding even more. The same goes for television, radio and music purchases. Individuals are the ultimate decision makers.
Perry:
“Bork is right, IMO, insofar as saying there’s no Constitutional protection for sodomy; it’s something that could be reserved to the state…The First Amendment was meant to be a restriction only on the federal government, after all.”
I understand how you arrived at that conclusion. You are correct in saying that the First Amendment [constitution] was originally meant to apply only to the federal government. Section 1 of the Fourteenth Amendment changed all of that.
Fourteenth Amendment:
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
I interperet that to mean that not only can the federal government not deny individuals certain rights, neither can any other government body within the U.S.
As far as unenumerated rights go, that’s a more difficult question. My understanding is that unless the U.S. Constitution expressly forbids it, the citizen has the right as long as no one else’s rights are violated.
I explain this in more detail in “The First Amendment Explained part 1 and part 2″ on my BLOG.
TF,
I’m with you on that one. People seem to forget the principal of “voting with your feet”.
The problem here is that the minority (or even majority in some cases) marshals political power to keep people from doing something they don’t like. Some people like violent, crass movies. But the people that don’t like them, rather than not watching them, seem to think that movies need to be sanitized for everyone.
Hollywood is driven by one and only one thing: money. Why do you think that they’re starting to bring more Christian themes into movies? Because they saw how much money The Passion made, and so they want a piece of it.
Stephen, it’s true that the 14th Amendment extended federal jurisdiction to citizens of the several States. However, the first section refers to criminal proceedings (so that a person can’t be fined, imprisoned or executed without due process), and it proscribes laws that do not apply to everyone (hence “equal protection”). The gist is to guarantee that everyone has the same rights, and that those rights can’t be infringed upon without due process.
Perry:
The equal protection clause does not only apply to criminal proceedings; the equal protection clause means that all laws are to be applied equally from Joe Citizen to the President (in theory).
The Equal Protection Clause was invoked to desegregate the South, in Bush vs. Gore, and in Terri’s Law (the law the Florida legislature originally passed that applied only to Terri Schiavo).
None of these cases are criminal cases but the 14th Amendment’s Equal Protection Clause was applied. If you search on Findlaw.com and use the keyword ‘equal protection,’ you will find many more examples of non-criminal applications of the Equal Protection Clause
Yes, I do know it extends to other proceedings, I was answering too quickly.
What I wanted to get into is that the Tenth and Fourteenth aren’t mutually exclusive. A state can assume a certain power that the Tenth reserves to it or to the people, which doesn’t necessarily go against the Fourteenth at all, so long as the law is equally applied.
So freedom of religion, speech, press, assembly, petition? Well, that was directed at Congress, though state constitutions (and their own Bills of Rights) usually guaranteed those by tradition, and of course courts later started applying them to any government level. But the Second through Eighth aren’t aimed at a specific government, with phrases like, “shall not be infringed” and “The rights of the people to be,” instead of “Congress shall pass no law…”
So we have all the enumerated rights, then a reservation of everything else to the states or the people. Like I said, for good or for ill, that can include things like sodomy, blue laws, even simple wine consumption. Just as long as they’re equally applied.
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