Liberty Wins the Day, Unanimously

“What’s the true test of one’s commitment to free speech? It does not come when he permits people to be free to say or publish ideas with which he agrees. Not by a long shot. The true test of one’s commitment to free speech comes when he permits others to say and publish ideas he deems offensive.”
— Walter E. Williams

From David French:

If you’re a lawyer arguing against free speech at the Supreme Court, be prepared to lose. Today the Court affirmed once again the Constitution’s strong protections against governmental viewpoint discrimination, even when the viewpoint discrimination is directed against “offensive” speech. In Matal v. Tam, the Court considered the U.S. Patent and Trademark Office’s refusal to register a trademark for a band called “The Slants” on the grounds that the name violated provisions of the Lanham Act that prohibited registering trademarks that “disparage . . . or bring into contemp[t] or disrepute” any “persons, living or dead.”

Given existing First Amendment jurisprudence, there would have been a constitutional earthquake if SCOTUS hadn’t ruled for Tam. The Court has long held that the Constitution protects all but the narrowest categories of speech. Yet time and again, governments (including colleges) have tried to regulate “offensive” speech. Time and again, SCOTUS has defended free expression. Today was no exception. Writing for a unanimous Court, Justice Alito noted that the Patent and Trademark Office was essentially arguing that “the Government has an interest in preventing speech expressing ideas that offend.” His response was decisive:

[A]s we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Quick, someone alert the snowflakes shouting down speeches on campus or rushing stages in New York. There is no constitutional exception for so-called “hate speech.” Indeed, governments are under an obligation to protect controversial expression. Every justice agrees.

The ruling is worth celebrating, but when law and culture diverge, culture tends to win. The law protects free speech as strongly as it ever has. The culture, however, is growing increasingly intolerant – subjecting dissenters to shout-downs, reprisals, boycotts, shame campaigns, and disruptions. Some of this conduct is legal (boycotts and public shaming), some isn’t (shout-downs, riots, and disruptions), but all of it adds up to a society that increasingly views free speech as a dangerous threat, and not as one of our constitutional republic’s most vital assets. Liberty is winning the important judicial battles, but it may well lose the all-important cultural war.

Source

Win One for Nino

From Charles Krauthammer:

Let’s understand something about the fight to fill the Supreme Court seat of Antonin (“Nino”) Scalia. This is about nothing but raw power. Any appeal you hear to high principle is phony — brazenly, embarrassingly so.

In Year Seven of the George W. Bush administration, Senator Chuck Schumer publicly opposed filling any Supreme Court vacancy until Bush left office. (“Except in extraordinary circumstances.” None such arose. Surprise!) Today he piously denounces Republicans for doing exactly the same for a vacancy created in Year Eight of Barack Obama.

Republicans, say the Democrats, owe the president deference. Elections have consequences, and Obama won reelection in 2012.

Yes. And the Republicans won the Senate in 2014 — if anything, a more proximal assertion of popular will. And both have equal standing in appointing a Supreme Court justice.

It’s hard to swallow demands for deference from a party that for seven years has cheered Obama’s serial constitutional depredations: his rewriting the immigration laws by executive order (stayed by the courts); his reordering the energy economy by regulation (stayed by the courts); his enacting the nuclear deal with Iran, the most important treaty of this generation, without the required two-thirds of the Senate (by declaring it an executive agreement).

Minority Leader Harry Reid complains about the Senate violating precedent if it refuses a lame-duck nominee. This is rich. It is Reid who just two years ago overthrew all precedent by abolishing the filibuster for most judicial and high executive appointments. In the name of what grand constitutional principle did Reid resort to a parliamentary maneuver so precedent-shattering that it was called “the nuclear option”? None. He did it in order to pack the U.S. Circuit Court for the District of Columbia with liberals who would reliably deflect challenges to Obamacare.

On Tuesday, Obama loftily called upon Congress to rise above ideology and partisanship in approving his nominee. When asked how he could square that with his 2006 support of a filibuster to stop the appointment of Samuel Alito, Obama replied with a four-minute word-salad signifying nothing. There is no answer. It was situational constitutional principle, i.e., transparent hypocrisy.

As I said, this is all about raw power. When the Democrats had it, they used it. The Republicans are today wholly justified in saying they will not allow this outgoing president to overturn the balance of the Supreme Court. The matter should be decided by the coming election. Does anyone doubt that Democrats would be saying exactly that if the circumstances were reversed?

Which makes this Senate majority leader Mitch McConnell’s moment. He and his cohorts have taken a lot of abuse from “anti-establishment” candidates and media for not using their congressional majorities to repeal Obamacare, defund Planned Parenthood, block executive orders, etc.

What was the 2014 election about, they say? We won and got nothing. We were lied to and betrayed by a corrupt leadership beholden to the “Washington cartel.”

As it happens, under our Madisonian Constitution, the opposition party cannot govern without the acquiescence of the president, which it will not get, or a two-thirds majority of the Congress, which it does not have.

But no matter. Things are different now. Appointing a Supreme Court justice is a two-key operation. The president proposes, the Senate disposes. There is no reason McConnell cannot hold the line. And he must. The stakes here — a radical generation-long reversal of direction of the Supreme Court — are the highest this Senate will ever face.

If McConnell succeeds, he will have resoundingly answered the “what did we get for 2014?” question. Imagine if the Senate were now in Democratic hands. What we got in 2014 was the power to hold on to Scalia’s seat and to the Court’s conservative majority.

But only for now. Blocking an Obama nominee buys just a year. The final outcome depends on November 2016. If the GOP nominates an unelectable or unconservative candidate, a McConnell victory will be nothing more than a stay of execution.

In 2012, Scalia averred that he would not retire until there was a more ideologically congenial president in the White House. “I would not like to be replaced,” he explained, “by someone who immediately sets about undoing everything that I’ve tried to do for 25 years.”

Scalia never got to choose the timing of his leaving office. Those who value the legacy of those now-30 years will determine whether his last wish will be vindicated. Let McConnell do his thing. Then in November it’s for us to win one for Nino.

Source

Antonin Scalia

Antonin Scalia
Antonin Gregory Scalia (March 11, 1936 – February 13, 2016)

Supreme Court Justice Antonin Scalia has passed. He was an unwavering bulwark of the Constitution and of liberty. Even if a decision did not go our way, I always had some degree of solace knowing he was there. Now I have an uneasiness knowing he is not. I fear for our country. May God bless his soul and help us.

The Full Furies Have Been Released

From William McGurn:

In the heady days since Anthony Kennedy unearthed a constitutional right for Americans “to define and express their identity,” the extravagance of the Supreme Court’s claim has taken some by surprise. It shouldn’t have. In finding for same-sex marriage the way he did, Justice Kennedy made official what he made inevitable a quarter-century back.

That was in 1992. The occasion was a Supreme Court decision on abortion into which Mr. Kennedy inserted a new definition of liberty. Where Thomas Jefferson had grounded human liberty in self-evident truth, Mr. Kennedy holds that the mere self suffices.

“At the heart of liberty,” he wrote, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Now he has followed through. In Obergefell v. Hodges, the court substitutes for the laws passed by the people acting through their state legislatures a new constitutional right to “dignity” based on the court’s “better informed understanding.”

Back when poor Harry Blackmun in Roe v. Wade established a right to privacy that likewise appears nowhere in the Constitution, he wrote under the conceit that his decision would resolve the issue once and for all. Instead, his 1973 ruling launched the culture wars.

Obergefell is Roe on steroids. Roe legalized a market for abortion for those who wanted them and those who provided them. It was qualified by conscience protections plus riders attached to federal legislation greatly limiting the use of taxpayer dollars to underwrite the practice. So Roe didn’t demand much of those on the other side—or on the sidelines.

Obergefell is another thing altogether. In one of the great flimflams of American life, it is a prescription for endless litigation smuggled in under libertarian clothing. This began with the opening question put to all those who held the classic view of marriage: What can it possibly matter to you, they were asked, if two men or two women who love each other call their relationship marriage?

We learned that it matters a great deal.

It matters to Brendan Eich, who was forced to resign last year as CEO of the company he co-founded after it became public that he had donated $1,000 to Proposition 8, the successful California ballot measure banning same-sex marriage.

It matters to Chick-fil-A, which in 2012 saw the mayors of Chicago and Boston declare the restaurant chain had no place in their cities because its chief executive held the same view of marriage that Barack Obama held until very recently.

It matters to Catholic Charities, which in several states has been forced out of the adoption business either because the charity does not offer same-sex spousal benefits or declines to place children for adoption with same-sex couples.

It matters for cake bakers, photographers, florists, jewelers and pizza-parlor owners who happily serve gay customers but draw the line at assisting gay weddings.

Finally, it matters to all religious schools and religious institutions. Give the Obama administration its due: The president’s solicitor general admitted during the Obergefell oral argument that a victory for same-sex marriage would put the tax-exempt status of such institutions on the chopping block.

The reason for all this is that the right for men to marry men or women to marry women is only half of the equation—and not even the most important half at that.

The other half involves antidiscrimination statutes and regulations, not to mention the discretion of federal, state and even private bureaucracies regarding everything from funding and accreditation to tax exemption.

In short, there is nothing live-and-let-live about the way this movement has operated the past few years, and to pretend otherwise requires a willful blindness. Now, with Obergefell, the full furies have been released.

As Justice Samuel Alito suggested in his dissent, thousands of Americans who never dreamed that the issue would affect them will soon get highly personal lessons in how the legalization of same-sex marriage by judicial fiat threatens their schools, their institutions and even their livelihoods. This is not your father’s culture war.

A century ago, another Supreme Court justice famously wrote that the Constitution “is made for people of fundamentally differing views.” How far we have traveled since.

Those seeking to crush all dissent from the new judicial orthodoxy on marriage will not always win, not least because the right to the free exercise of religion—in bald contrast to Mr. Kennedy’s right to dignity—is in fact in the Constitution. Still, however individual cases may turn out, by foreclosing the option for democratic debate and compromise the Supreme Court has ensured a bitter national harvest.

Welcome to Justice Kennedy’s world. Where upholding the Kennedy definition of liberty—the right to define your own truth—turns out to mean denying that same right to millions of Americans who define marriage and truth in a way different from his.

Source

The Despotism of an Oligarchy

From Edward Mechmann:

In 1820, Thomas Jefferson wrote a letter to a prosperous merchant, in which he discussed his views about the proper role of the judiciary in the American constitutional system. In his letter, Jefferson made a famous observation:

You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

In his first inaugural address in 1861, Abraham Lincoln echoed these sentiments, in reference to the Supreme Court’s infamous decision in the Dred Scott case:

… the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

In 2015, it is now more clear than ever, that Jefferson’s and Lincoln’s predictions have been fulfilled, most recently with the latest ruling on the redefinition of marriage.

[…]

Little needs to be said about this latest decision by the Court. This Court has a propensity to make things up as they go along, to satisfy their policy preferences or to follow public opinion. Reasoned legal argumentation really has no great sway over the Court on these issues, so there’s no reason to treat their decision as if it had anything to do with law at all.

There is no question that over the past few years, public opinion has shifted strongly in favor of redefining marriage. But the resolution of such a weighty policy argument should not be left to the least democratic branch of the government. It should be hashed out in the rough and tumble of politics. That is what was happening, prior to the Supreme Court’s first usurpation, in the Windsor case. But democracy is apparently no longer an option, when the post-modern Zeitgeist of sexual liberationism demands its way.

And so, we should really stop pretending. When it comes to certain important issues about the nature of the human person and our society, we really no longer have a rule of law or of reason, but a rule of lawyers — a majority of five, to be precise, all of whom attended a few elite Eastern law schools. Jefferson’s fear of the despotism of an oligarchy has fully come true.

Source

Incumbent Protection Act

From Thomas Sowell:

The recent Supreme Court decision over-ruling some Federal Election Commission restrictions on political campaign contributions has provoked angry reactions on the left. That is what often happens whenever the High Court rules that the First Amendment means what it says — free speech for everybody.

When the Supreme Court declared in 2010 that both unions and corporations had a right to buy political ads, that was considered outrageous by the left. President Obama called the decision “devastating” and said it “will open the floodgates for special interests.”

Those unfamiliar with political rhetoric may not know that “special interests” mean people who support your opponents. One’s own organized supporters — such as labor unions supporting President Obama — are never called “special interests.”

All politicians are against “special interests,” by definition. They all want their own supporters to have the right to free speech, but not those individuals and groups so benighted as to support their opponents.

Even in an age of polarization and gridlock, the one area in which it is easy to get bipartisan support in Congress is in passing campaign finance laws, restricting how much money can be spent publicizing political candidates. What Congressional Democrats and Republicans have in common is that they are all incumbents, and they all want to keep their jobs.

Publicity is necessary to win elections, and incumbents get millions of dollars’ worth of free publicity from the media. Incumbents can all pontificate in Congress and be covered by C-SPAN. They can get interviewed on network television, have their pictures in the newspapers, and send out mail to their constituents back home — and none of this costs them a dime.

Congressional staffs, paid by the taxpayers, are supposed to help members of Congress with the burdens of their office, but a major part of their staff’s work is to help get them re-elected.

That’s not just during campaign years. Everything members of Congress do is done with an eye toward re-election.

Any outsider who wants to challenge an incumbent at the next Congressional election has to pay hard cash to buy ads and arrange other forms of publicity, in order just to get some comparable amount of name-recognition, so as to have any serious chance of winning an election against an incumbent.

Few people have the kind of money it takes for such a campaign, so they have to raise money — in the millions of dollars — to pay for what incumbents get free of charge.

Campaign finance laws that restrict who can contribute how much money, who can run political ads, etc., are all restrictions on political challengers who have to buy their own publicity.

If truth-in-packaging laws applied to Congress, a campaign finance law would have to be labeled an “Incumbents Protection Act.”

The very high rate of incumbent re-elections, even while polls show the public disgusted with Congress in general, shows how well incumbents are protected.

The media are accessories to this scam. So long as the information and opinions that reach the public are selected by mainstream media people, whom polls show to be overwhelmingly on the left, the left’s view of the world prevails.

Hence the great alarm in the media, and in equally one-sided academia, over the emergence of conservative talk radio programs and the Fox News Channel on television.

No longer can the three big broadcast television networks determine what the public will and will not see, nor two or three leading newspapers determine what is and is not news. Nobody wants to give up that kind of power.

When businesses that are demonized in the mainstream media, and in academia, can buy ads to present their side of the story, that is regarded in both the media and academia as distortion. At the very least, it can cost the left their self-awarded halo.

It is fascinating to see how some people — in both politics and the media — can depict their own narrow self-interest as a holy crusade for the greater good of society. The ability of the human mind to rationalize is one of the wonders of the world.

Source