> >>It can be argued that it in the US it has been historically
> difficult to defend the civil liberties of leftists or other dissidents
> using any standard short of a "First Ammendment absolutism."
> Anything short of a "First Ammendment absolutism" seems to
> leave too many loopholes that the state can use to repress the
> speech of leftists.
>
> Actuallly our 1st Amend. jurisprudence hasn't done too well in
> protecting the speech of leftists when it counted. And US v. Dennis, upholding
> the conviction of the CPUSA leaders for--am am not making this up--conspiring
> to advocate the overthrow of the government--is still technically good law.
I'm currently reading Foner's new book, *Story of American Freedom*, which gives a good historical sense that yes indeed the disenfranchised, leftists (especially the foreign-born working class kind), blacks, Asians, etc., can only make headway via this kind of absolutist/universalist strategy. Your point here shows how even that doesn't really do the trick.
> >>Thus we get the spectacle of progressives
> who would normally argues against a strict constructionist
> interpretation of the Constitution taking an almost fundamentalist
> view of the Bill or Rights (excluding the Second Ammendment).
>
> This is very confused. The Nixonian term "strict constructionst" means
> nothing. Justice Black, the absolutist architect of most of our 1st A
> jurisprudence in the ACLU vein, was a quasi-textualist, insisted on the
> litearl ,eaning of the words, but then paid no mind to the word "Congress" in
> the text, reading that to mean "government."
There is the little thing called the incorporation doctrine, from the 14th Amendment, which applies most of the Bill of rights to the states. Black didn't make this up, he was following it. So I wouldn't fault him on this point.
The real problem for the strict constructionist approach is that it obviously conflicts with the "original intent" <GBB> of the Constitution. It's a breathtakingly brief document diametrically opposed to the kinds of constitution that spell everything out in detail and clearly ARE intended to be treated as strict instructions. Madison & Co. wanted something that would last, and this meant a certain flexibility was absolutely necessary.
This is one of the VERY few things I believe one can safely say in the way of an "original intent" argument about the Constitution. (See my comments on original intent below.) Thus the grain of truth in one conservative cannard serves to defeat another conservative cannard.
> As far as original intent goes,
> it's very unckear what the framers had in mind, or what the Amendment mewant
> back then to an ordinary reader. The framers had no trouble with the Alien &
> Sedition Act, for example.
Minor point first: They had a great deal of trouble with it. It was THE issue (or at least the emblam of the issue) which lead to Jefferson's decisive victory in 1800, and the permananet decline of the Federalist Party. What they didn't have at the time was the principle of judicial review in the form we now take for granted, so it didn't rocket up to the Supreme Court for them to rule on.
However, your larger point is very well taken. The whole notion of original intent when you're dealing with a group process like that is really ludicrous. And laws are ALWAYS the result of group processes. The best one can do is use an historical approach to construct the ensemble of intentions involved. (See below, re 5th Amendment).
As I say above, the desire for flexibility is one of the few things I think can safely be identified as a shared intention. But then, how *MUCH* flexibility?
Original intent can be a useful hueristic -- the Republicans currently ignoring the original intent of the impeachment language reminds us of this in the breach -- but hueristics are exactly what conservatives DON'T want. They want everything set in granite. Except, of course, our feet. Those they want in concrete.
> The sniping remark about the 2d Amend is uncalled for. If you want to be a
> strict constructio9nist or textuialist or an orginalist or whatever you want
> to call it, you can do what the S.Ct did in Miller, the governing case from
> the 30s on this, and give weeight to the prefactory clause, "A well regulated
> militia . . . "
And plenty of other rulings that conform to Miller, beating back all the gun nuts "ifs," "ands" and "buts".
> As Richard Epstein has argued at length, the real snake in the barrel of
> the Bill of Rights is the Takings Clause of the 5th Amend, "Nor shal;l private
> property be taken for public purposesw ithout just compensation." Give taht
> one some play and it will get you to right wing libertarianism of Epstein's
> variety.
Here's where historical ensemble of intentions could come in mighty handy.
> Progressives, incidenatrlly, also downplay the 10th Amend., which has
> been getting some teeth lately in a series of recent states-right S.Ct
> decisions.
Everyone downplays the 10th Amendment since the Civil War & the 14th Amendment. Its the neo-Confederate influence on the Supreme Court that's the disturbing anomoly.
-- Paul Rosenberg Reason and Democracy rad at gte.net
"Let's put the information BACK into the information age!"