Friday, November 18, 2005

Reasons For Enumerating Constitutional Rights, Pt. Whatever

Roger Ailes (not that Roger Ailes) brings word of the following:
The writer David Irving was arrested in Austria last week, according to a statement on his Web site. Although he has not yet been charged, he is suspected of the crime of Holocaust denial.
Okay, for those not familiar, David Irving is a Holocaust denier. But let's repeat: Irving was arrested for the crime of Holocaust denial. Thoughts, Tom? If Congress enacted a ban on Holocaust denial that included a substantive finding that preventing public dissemination of Holocaust skepticism was a sufficient good to infringe on freedom of speech, on what grounds, if any, could a court overturn such legislation?

1 Comments:

At 2:55 PM, Blogger Tom said...

What was that principle of interpretive charity again?

Anyway, the simple answer to your question is that such a statute would violate the First Amendment and that courts should enforce those provisions already in the Constitution.

I suppose what you really mean to ask is something like this: “Assuming we didn’t have the First Amendment, what reason is there to take away the power to balance free speech restrictions from the legislature and give it to the courts?” But of course once you phrase the question like this, the answer is obvious: Legislatures cannot be trusted to keep the channels of political change open. They want to keep their jobs, and often a good way to do this is to silence dissent.

Now, the real problem with what I’ve said so far is that equal protection jurisprudence clearly requires the court to do more than ensure everyone a voice and a vote. This is a somewhat subtler area, and I think we should talk about it in person because writing out a huge comment is a pain in the ass and no one reads these anyway.

 

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