[lbo-talk] John Roberts doesn't like Bong Hits 4 Jesus

[Jerry Monaco]

On 6/27/07, J. Tyler <unspeakable.one at gmail.com> wrote:
>
> Jerry Monaco wrote:
>
> > As Justin knows, the U.S. constitution as originally understood does not
> > protect free speech against state and local restrictions, only against
> > laws
> > made by congress or at most restrictions of free speech by the federal
> > government.  It was only in the 20th century that meaningful guarantees
> of
> > free speech were extended to the States.  So perhaps, to be generous to
> > Thomas, this is what he actually meant.
>
> That's still too generous to Thomas, because even granting that his
> opinion
> is grossly misleading.  He never directly confronts that the First
> Amendment
> was not even available to challenge what happened in state public schools
> until the passage of the 14th, and then he cites ninetheenth- and early
> twentieth-century, post-14th amendment state court cases in which speech
> was
> regulated, but fails to mention that in those cases the litigants never
> even
> claimed the protection of the 1st, and hence that wasn't even in issue.
> During the time period between passage of the 14th and when incorporation
> through it's "due process" provision began in earnest, the Supreme Court
> had
> quickly read what was meant to be the incorporation provision (privileges
> and immunities clause) out of the 14th Amendment, and so most people
> thought
> it was essentially a dead Amendment.  Thomas doesn't mention that either.
> He does point out that states had their own free speech guarantees in
> their
> constitutions, but doesn't bother to explain the relevancy of that
> fact--it's not relevant.  So it's not that it was being fought and losing.
> It was never being fought at all during the time period in which the cases
> he relies on were decided.

Yes, you are correct and I agree with you on what Thomas does and doesn't
do  But I think that the reason Thomas does not take the step to directly
question incorporation is that at the moment it is simply a dead issue and
it would make him look insane and not just reactionary.  Right wingers
depend on freedom of speech and First Amendment incorporation as well as
left-wingers.  He would not only be going against his usual suspects but
against his usual "constituency"  (I use this term loosely).

By the way it is at least debatable whether the privileges and immunities
clause was meant to be an incorporation provision.  Many of the Radical
Republicans assumed that they were incorporating free speech protection,
because of their own memories of restrictions against Abolitionist speech.
But they certainly didn't mean to incorporate the whole Bill of Rights as
Black argued, because they specifically rejected incorporation language to
that effect.


> But even being generous to Thomas, if he does actually mean to say that
> > the
> > Constitution as originally understood does not extend First Amendment
> > protections to actions of the various states, then his program is much
> > more
> > that of a radical reactionary than most people understand.  That would
> > mean
> > he believes that New York State can pass a law banning rallies by
> > "subversive" parties and the U.S. constitutions has nothing to say about
> > it.
>
> There's no doubt he is the most reactionary member.  Scalia will not even
> join his more eccentric opinions, including the one under discussion.  He
> has actually written (repeatedly, I think) that he believes the
> establishment clause does not apply to the states: "I accept that the Free
> Exercise Clause, which clearly protects an individual right, applies
> against
> the States through the Fourteenth Amendment. See Zelman, 536 U.S., at 679,
> and n. 4 (Thomas, J., concurring). But the Establishment Clause is another
> matter. The text and history of the Establishment Clause strongly suggest
> that it is a federalism provision intended to prevent Congress from
> interfering with state establishments. Thus, unlike the Free Exercise
> Clause, which does protect an individual right, it makes little sense to
> incorporate the Establishment Clause."

Thanks I for this.  I read Zelman but I did not remember this part of
Thomas's concurrence though I should have.

http://www.law.cornell.edu/supct/html/02-1624.ZC2.html
>
> So he certainly would rule, at least, that if New York passed a law
> mandating that every person attend a Baptist church on Sunday, the U.S.
> Constitution has nothing to say about it.  I seem to remember another
> opinion in which he based that conclusion on the language of the
> Amendment,
> which places restrictions only on "Congress."
>
>

But doesn't this all, beginning with Justin's comment, speak to the
instability of originalism in the first place?  I truly think that Thomas
would challenge incorporation of the Bill of Rights if he could, but the
politics, even on a reactionary court is not right for him.  Where he is
willing to challenge incorporation, as with the Establishment Clause, the
political alignments allow him to play to his constituency.  So what comes
first, original interpretation or political power?

Jerry