Quick Thoughts: Free Speech must be protected, even when offensive.

Today the Supreme court handed down an 8-1 ruling that protests in conjunction with funerals is protected under the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Though what the protestors may say, and the message they convey may be of the most offensive and insensitive and done at the most inappropriate times, speech no matter how offensive, insensitive and ill-timed must always be protected. Standards of the protection speech in public must never have limits, except for the those that directly endanger the public, like screaming “fire” in a movie theater, or directly advocating the physical harm and immediate of someone. But no limits should ever be placed on the “decency” of speech because if limits are placed on it, it leaves the standards to the whim of man. If the standards of decency where left to what a person feels is “decent”, this leaves open the ability to limit speech of political nature. What one considers as essential political speech and something that needs to be brought to peoples attention, another may find indecent. Only one entity would have the ability to decide what is “decent”. By allowing government to decide what is decent, it opens the door to give government the ability to suppress or outright prohibit speech which is critical to government or policy.

The free expression of opinion should always remain absolute, subject to no test of decency. In this time of a very polarized electorate, neither side should be able to deem what of the opposing side is or is not “decent”. Only in an environment of the free exchange of all ideas can the people be the most informed, limiting any point of view is to deprive the people as whole of an avenue to, One: express their views, and Two: hear other or opposing views.

Speech can generate the full spectrum of emotions, and can be extremely powerful. We may enjoy hearing the good and what we like in speech, but remember this speech will be offensive or disagreeable to others. Wrongs cannot be righted if speech is limited, since many times when the wrongs of society are first addressed it was considered “offensive” to discuss it. A society can only be as just and free as its speech is, no matter how many it offends. When a society limits speech, it is limiting its own freedom, and also one of the most critical methods of correcting itself, by addressing the offensive things that occur in a society.

Stare Decisis; Legitimate Precedence or Bad begetting bad.

Stare Decisis (ster-ē-di-ˈsī-səs) is a Latin word meaning “stand by the decision”, it is the use of precedent, or prior judicial rulings,  in determining a law in question. Merriam-Webster defines it as¹:

A doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice.

A simple internet search will turn up various different ways to define stare decisis, but all will follow the same basic principle in its definition, a doctrine of using what courts have ruled before on a similar case and apply it to a similar case. Stare decisis can be argued in many different ways from criminal and civil law, arbitration, etc., but the focus here will be only in regards to interpreting the Constitution in the Federal Court System, and the role it should play in determining what law is.

As an Originalist, stare decisis has legitimate use in not only the Supreme Court but inferior courts as well. But I also contend stare decisis is a doctrine that has no place in certain regards when determining if a law or case before the court is Constitutional. Being an Originalist an inconsistent application must be avoided in order to remain consistent in interpreting the Constitution across all cases and scenarios that may arise. So in order to do this, situations on stare decisis prudent use need to be recognized, and they way I do this is two fold:

1. What court is reviewing the case.
2. On what aspect of the case to apply it.

 

Were the Founders Originalist?

Were the Founding Fathers originalist, this is a question I get more often than most others, along with, “Were did Originalism come from?” or “Which Founder was an Originalist?”. The first thing that needs to be discussed is, what Originalism is. Justice Antonin Scalia describes it here in remarks to the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005 (What is Originalism and Original Meaning?). In his remarks Justice Scalia says the following:

Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.

He does not contend to be a “strict constructionist” and goes on to state, that he does not believe anybody should be. An Originalist is one who believes the meaning of the Law is what it was understood to be by those who adopted it, the people who ratified the provision in question. It is this group of people, whether in the Convention of the States in 1787-1789 on the Constitution, or the various bodies who ratified the 27 Amendments to the Constitution, that granted the permission to give power to government. Only the people and these bodies can cede power, it cannot be arbitrarily taken, and because only they can cede the power it must be understood, what power they in fact meant to cede to government, the Original Meaning of the provision in question. To sum up the basic foundation of an Originalist is, I put this way,

For all Originalist the basic beliefs are that the Constitution is the Authority in which the government operates, and is done by the consent of the People, and the people expect it to be followed. It is a binding contract of conduct between the legitimate power [the people] and the acting power [the government], as in all contracts it defines what the limits of it are.

Who are the Founding Fathers? Rufus King

Rufus King was  delegate of Massachusetts during the Convention of 1787 and was a signer of the Constitution at the end of the Convention. Rufus King also kept notes from that Convention, though not as well known as James Madison’s Notes, Rufus King’s does provide a different aspect of the convention and his notes also assist in filling gaps left from Madison’s. He would latter represented the State of New York in the US Senate, and be the Ambassador to Great Britain.

Rufus King was born in Scarboro, Massachusetts, on March 24, 1755, the portion of Massachusetts subsequently became Maine in 1820, near present day Portland, Maine. He was the eldest son of a prosperous farmer-merchant, and his father served as a citizen-soldier during the early stages of Britain's contest for North America, and participated in the successful assault on the French fortress at Louisbourg, Canada, in 1745. Shortly after that victory he left the Boston area to settle on the northern frontier of Massachusetts, where he quickly rose to prominence as a wealthy farmer and merchant. His ability to dominate affairs in Scarboro provoked considerable envy, an emotion that grew stronger as the rift between the colony and the mother country widened. Rufus’ father, a strong supporter of King George, defended the unpopular Stamp Act of 1765, a measure Parliament enacted to raise revenues in the colonies to help pay for  the cost of the French and Indian War of the 1754-1763. Local Patriots, in retaliation of his support, whom called themselves the Sons of Liberty, ransacked the family's home in 1766.  Not intimidated, Rufus’ father retained his Loyalist support, that led another confrontation in 1774. This  second confrontation was with the local militia who demanded a public recanting. Rufus’ father was humiliated, and the strain caused by this confrontation led directly to his fathers' death and instilled in Rufus a lifelong passion for law and order ,and for a society controlled by rational men. 

Quick Thoughts: Lawmakers abandon their post.

"I will support and defend the Constitution of the United States…" an oath many have recited, whether in the Military, Law Enforcement, or Public service. The oath mean different things to all, but this phrase is clear you will follow what law tells you to do, support it and defend it. The reason it is an oath is to symbolize your support for what it stands for, it is you giving your word, your honor and your integrity that you will support, defend AND follow it.

The United States is not a direct Democracy; in fact many of the Founders considered a "true democracy" as evil and instead presented a Republic. A Republic where the people chose who will represent them in government, whether Town, county, State or National according to the governing Constitution and Law. But with this the States are required only one thing in their government, that it be a Republican system as required by Article IV Section 4, "The United States shall guarantee to every State in this Union a Republican Form of Government".

What this means, is the people chose those who will be our collective voice in the matter of the creation of Law in the Legislature. Laws must be made pursuant to the US Constitution, and State as well if a State body, but it is the legislature who has the sole role of making law, and act as the direct representatives of ALL the people collected.

Today in Wisconsin, an entire delegation of State Senators vacated not only their Chamber for a scheduled vote according to the Laws of the State, but these members left the State entirely. By doing this, the Senate cannot meet quorum to carry on ANY business at all of making, altering or cancelling law. This was done in protest to a bill they were opposed to, and successfully prevented the measure from being voted upon. But by doing this, this group of 14 people has denied an entire State its ability to carry any business into effect that awaits their action. The people of Wisconsin have properly elected their members of the Legislature, and their will is expected to be honored.

The people of Wisconsin like the rest of the United States are guaranteed a working republican government that will honor and fulfill their office. By abandoning their office, they have abandoned the people of Wisconsin, and have violated their oath.

These Senators oath is to "support…the Constitution", which includes the guarantee of a Republican government, and these Senators have willfully accepted the office for this role. By abandoning their office, they have prevented the State of Wisconsin from deciding on a measure according to law, by a violation of their oath, position and honor to both and denying the Representation of all from Wisconsin.

I understand why they did this as a sign of protest, but their official position in office does not provide for this type of protest. The type of protest they have available is by speaking on the floor of their chamber without fear of reprisal on incrimination, and by the vote they cast on a measure, NOT to prevent the lawful vote on the measure. Republicanism means one side has too lose, but it would endanger the entire structure of our Republic, if all the entire minority voting block has to do is abandon their position, to prevent a vote from taking place.

These Senators job is to represent the People of their jurisdiction in Government. This requires them to be present, to speak to persuade, and to Vote. By denying a vote, an elected official is denying the entire State population their Representative to do the same and represent their constituent's, interest and denies all their Constitutional Guarantee of a republican form of government, and the Senators in the end are violating their oath to ensure it.

At times in a Democratic Republic you will lose votes, you will lose votes on things very important to you, but it is never acceptable to deny all the people their right as well to be represented.

The integrity of the Republic and honor of Office and Oath must be paramount, it cannot be compromised. If it is compromised, it is the authority of the people in the end who is soiled. This cannot be tolerated, this shifts our form of government from one of the rule of law, to the will of man.