>>> <JKSCHW at aol.com> 10/28 11:46 PM >>>
In a message dated 98-10-28 12:47:16 EST, you write:
>>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.
Justin, esq.: 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. __________
Charles: I know my brother counsel, Justin,
doesn't agree with my whole position on this issue,
but I am glad to see him take note of this important
fact of U.S. jurisprudence: The First Amendment
has been very shaky in protecting the speech of
leftists. Besides Dennis case from the 50's,
the original (that is first) and famous Holmes/Brandeis
decisons had the result that WWI era and
1920's Leftists were jailed for speaking against
the capitalist WWI as against the interest
of workers. Eugene V. Debs was jailed
and found not to have his purely political
speech protected.
________
>>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." 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. ___________
Charles: The generation that enacted the First Amendment did not consider that it protected speech advocating couter revolution, Tory speech. (See _Early Years of the Republic_ by Herbert Aptheker)
_______________
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. ___________ Charles: We need a constitutional amendment for a right to a decent job, including a provision amending this aspect of the 5th Amendment such that corporate perogatives with their private property are curbed based on their public impact on jobs, as in plant closings.
A very radical and dialectical dimension of the U.S. Constitution is its provision for Amendment. It implies that the fundamental law is not a fixed set of eternal principles , but changes. This was a completely new idea at its origin , as was a written constitution period.
The Amendment provision has been called the Revolution provision. __________
Progressives, incidenatrlly, also downplay the 10th Amend., which has been getting some teeth lately in a series of recent states-right S.Ct decisions.
>> Philosophically I think that a free speech absolutism is difficult
to sustain but given the realituis of American jurisprudence
and such factors as the historical weakness of the left then
a First Ammendment absolutism may in fact be pragmatically
the best course for leftists to take.
As a pragmatist, iI'd say, so much the worse for your philosophy then. __________ Charles:
A closer look shows that protecting Rightwing speech has not protected Left wing speech (See for example, _Dennis_ above) So, this strategy fails the pragmatic test.
By the way, I would even say that jurisprudence IS pragmatism. ___________
>>> In other more
progressive countries a more nuanced approach to free speech
may be the best course to take.
If you think our 1st Amend jurisprudence isn't nuanced enough. try readinga treatise on the suvject. You want nuances? We got nuances. __________
Charles: Having read much of the nuances, I would call them poltically motivated rationalizations. Law is politics, the old pragmatist Lenin said.
Charles Brown
attorney and counselor at law