“I do not believe that the solution to our problem is simply to elect the right people. The important thing is to establish a political climate of opinion which will make it politically profitable for the wrong people to do the right thing. Unless it is politically profitable for the wrong people to do the right thing, the right people will not do the right thing either, or if they try, they will shortly be out of office.”
― Milton Friedman

“Human beings are born with different capacities. If they are free, they are not equal. And if they are equal, they are not free.”
― Aleksandr Solzhenitsyn

Saturday, December 23, 2006

Caught between a penumbra and an emanation.



Coat of Arms for the Federal Election Commission:

In Or, a fess Gules embattled, in chief a penumbra; in base an emanation.




The good news first. A federal Court has created a minuscule breach in the wall separating incumbents from their hard won immunity from criticism.

Court says issue ads OK during elections


A federal court on Thursday loosened restrictions on corporations, unions and other special interest groups that run political advertising in peak election season.

The 2-1 ruling said groups may mention candidates by name in commercials as long as they are trying to influence public policy, rather than sway an election.

...The case automatically heads to the Supreme Court for review. If the high court agrees with Thursday's decision, the justices may have to establish a test to differentiate genuine issue ads from phony ones.
That's one teensy blow against McCain-Feingold, a giant leap for volume of regulations.

Doesn't "sway an election" automatically assume "influence public policy"? Why else have elections? In a country where more people can name the 3 Stooges than 3 Supreme Court Justices, we are again going to be allowed to associate the names of the candidates with issues in the period before an election? Wow, thanks, we'll certainly not forget John McCain's name.

Ostensibly, the decision implies a slight return to Constitutional principle. In real life, though, this decision will eventually generate a hundred and fifty pages of regulations establishing the "bright-line" the Federal Election Commission wants. Given "emanating penumbras," it's a perfectly reasonable request. In the end, the convolutions will rival the tax code in complexity and will have effectively buried any free speech restoration under tons of red tape.

That the Supreme Court doesn't heed any "bright lines" was established by Justice William O. Douglas, who claimed in GRISWOLD v. CONNECTICUT, that: "[P]enumbras, formed by emanations" are sufficient excuse for a disingenuous parsing of the First Amendment. He wrote: "The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice - whether public or private or parochial - is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights."

It is stunningly obvious that the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

...clearly protects the right of people to associate. How else might they assemble? Suggesting that freedom to associate is not directly described by the phrase "peaceably assemble" is ludicrous. Using that as the basis to assert emanations and penumbras as legally binding, is laughable.

Justice Douglas had to reverse the logic of the Founders by pretending that what is not found in the Constitution by a spell-check is not protected. The Constitution was expressly designed to LIMIT the power of government - so what is not found there is automatically protected from meddling by any branch of government. Douglas also needed to ignore the existence of the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Compounding the hypocrisy of his elevation of semantics over logic, Douglas wrote "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions." - while proceeding to to just that.

This marginal reversal of McCain-Feingold is not cause for celebration. Can you say "Pyrrhic"?

H/T Captain's Quarters

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