THE DAILY BLADE: One Judge, No Votes?
In a one-hour debate televised live on C-SPAN last Sunday, Justice Antonin Scalia said unelected judges should not take it upon themselves to decide divisive issues, such as abortion or race-based school admissions policies, when the Constitution offers no guidance. Scalia prefers to interpret the Constitution according to its text, as understood at the time it was adopted, according to The Associated Press, Justice Scalia and his debating partner, American Civil Liberties Union president Nadine Strossen, made these points:
"On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment," the Reagan appointee said.
"Whether it's good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution," he said.
Strossen countered that such a legal approach would have barred the landmark 1954 ruling in Brown v. Board of Education, a unanimous decision outlawing racial segregation in public schools.
"There are some rights that are so fundamental that no majority can take them away from any minority, no matter how small or unpopular that minority might be," she said. …
"The Constitution very clearly forbids discrimination on the basis of race," Scalia said in response to a question by moderator Pete Williams of NBC. "It doesn't seem to me to allow Michigan to say we think it's good to discriminate on the basis of race when you want to make sure everyone is exposed to different backgrounds. We cannot use race as the test of diversity."
Wall Street Journal columnist John Fund details several cases in which judges overruled the will of the people that exemplify Justice Scalia’s concerns:
Government officials pay homage to democracy, but this election year some are actively trying to undermine it. While the 79 citizen-sponsored initiatives that will be voted on this year is up 25% from 2004, courts have become increasingly aggressive in throwing them off the ballot, often for dubious reasons. …
[T]he biggest threat to initiatives comes from the courts, which are striking measures from the ballot with abandon. The Florida Supreme Court, infamous for its creative rulings in the 2000 recount, has removed a proposed measure creating a nonpartisan commission to redraw the state's gerrymandered legislative districts on the grounds it deals with more than one subject.
In Oklahoma and Nevada, measures restricting government's powers of eminent domain and restricting land use were either removed or gutted on single-subject grounds. In Montana, an initiative limiting growth in the state's budget to increases in population and inflation was declared invalid because it authorized judges to modify the spending cap. A district judge ruled that provision represented a second subject.
In June the Colorado Supreme Court used a similar interpretation to remove an initiative denying most state services to illegal immigrants. …
"State courts are aggressively wielding the single-subject requirement to deny voters the ability to vote on important public policy issues," says Elizabeth Garrett, a University of Southern California professor who worked in the office of Sen. David Boren, an Oklahoma Democrat.
Update
Should Some Speech Be Criminalized or Censored?
Today The Boston Globe’s Jeff Jacoby wrote the column that James Taranto should have written when he tackled this topic last week. Jacoby sounds the alarm that free speech is under assault worldwide - even here in the US. His column discusses some of the most egregious examples of censorship, both by government edict and by mob rule:
Did the Ottoman Turks commit genocide against the Armenians in 1915?
Careful -- in some places you can be arrested if you give the wrong answer to that question. Under Article 305 of the Turkish Penal Code, for example, those who promote "recognition of the Armenian genocide" are subject to prosecution, while Article 301 makes the denigration of "Turkishness" a crime punishable by up to three years in prison.
Yet if acknowledging the Armenian genocide is a crime in Turkey, gainsaying it could soon be a crime in France. Last week the French National Assembly voted to approve a bill under which anyone denying the 1915 genocide could be sentenced to a year's imprisonment and a 45,000-euro ($56,000) fine. That matches the penalty under French law for denying the Nazi Holocaust .
The French legislation is meant to uphold the truth -- the Armenian genocide, like the Holocaust, is a fact of history -- while the point of the Turkish law is to debase it.
Both, however, are intolerable assaults on liberty. Beliefs should not be criminalized, no matter how repugnant or absurd.
We Americans should know this better than anyone. The right to speak one's mind is supposed to be a core article of our civic faith. Yet the would-be censors are busy here, too. ...
The silencers are at work in the marketplace of ideas, using hook or crook to smother opinions they dislike. The lust to censor is as powerful as ever. If only liberty's defenders were equally vigilant.
In contrast, New York Times blogger Stanley Fish does not believe that shouting down Gilchrist (subscription required) violates his free speech rights, because he was there only for "the shock value of his appearance before an audience known in advance to be hostile to his message":
He has no constitutional right not to be shouted down or hounded off the stage. No government has abridged his freedom of expression. And he can give his talk elsewhere (no doubt he already has) or come back and give it at Columbia when the university has instituted better crowd-control measures. At most, the students are guilty of being impolite, bumptious and rowdy, but again, this is the kind of behavior that the event – more akin to a keg party than to a reasoned discussion – was designed to elicit. If there is any discipline to be meted out here, its object should be not the students, who were doing just what they were expected and (in some sense) directed to do, but those administrators or staff members who, by virtue of their positions, were responsible for seeing that nothing went wrong, or, at least, too wrong.
The Stiletto was heartened to see that most of the blog’s readers did not buy into Fish’s reasoning. A sampling of the posts:
† joe milkes: … I went to college in the days of the Viet Nam war, urban city riots, Malcolm X, George Wallace. Guess I don’t get it. If you don’t like the message why not hear them out then refute the message, challenge it, have a peaceful demonstration, etc. and not be so threatened that you have to prevent the other side from expressing themselves.
† Eyes wide open: Poppycock. It was just plain bad manners. And there is value in learning to disagree without being disagreeable … imagine if the US Congress could learn that lesson!
† Charlie B.: Professor Fish characterizes the Minuteman Project as "anti-immigration". My understanding is that they are against illegal immigration, which is a very different thing. We wouldn’t call the FDA an "anti-food" agency just because they oppose killer spinach, would we? ... The platform is itself highly debatable, and such a debate would be better for all of us than the use of characterizations that put one’s antagonists beyond the pale of intelligent discourse.
† Columbia grad student: I would be curious to know if Prof. Fish would still believe that students were really "doing just what they were expected and (in some sense) directed to do" if it was he being shouted off the stage. When one is invited to speak at Columbia, it is not "expected" that he or she will be shouted down and physically intimidated. What is expected is that the speaker deliver his address, however repugnant his views may be.
† Mark Hammitt: So I guess the Modern Left’s commitment to free speech extends only to a strict, First Amendment interpretation against government interference — not the principle itself.
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