Thursday, August 25, 2005

Those Darn Activists!

They're at it again. I can't stand those judges, always getting in the way of Congress; legislating from the bench. Tom DeLay is right. We need to keep them from intervening in the realm of Congress.

My beef this time? The Court is declaring what isn't free speech absent Congressional clarification.
According to the link, the 9th Circuit Court of Appeals (those darn West Coast folks) handed down a decision that a prisoner who offers to kill a judge in exchange for money has no protection under the First Amendment.

Specifically, Judge Carlos Bea found that a prisoner's statement "that he wanted to target a judge and 'string the up and cut her throat, his throat, and make it like a copycat so that people would do the same thing,' combined with an offer to provide weapons and money reward, can reasonably be interpreted as a serious expression of intent to harm."

Now perhaps I'm naive, but I didn't realize there were caveats to free speech. Next thing you know, people who exoercise their liberties to use cars that aren't being used by others will have to spend time in prison.

I seem to remember Congress threatening to get rid of the 9th Court of Appeals at one point if they didn't straighten up and fly right. This is authorized under the Constitution, Article III. I think it's time we did that. Behavior such as this, undermining Congressional Authority is reprehensible and this would send a message to everyone.


Michelle said...

Steve, i know i'm being a pain, but would you mind elaborating a bit on the free speech/protection bit? Just trying to get my head around it.

Steve said...

Sure Michelle,

The First Amendment in the Bill Of Rights here in the States says:
"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."

There is a lot of debate over what exactly that means, and Constitutional scholars disagree as to how to interpret it.
If you go from what is known as a Strict Constructionist view, you take the words on the document and nothing more. This would mean that most anything anyone said or wrote would be protected. This would mean inflammatory statements, explicit lyrics, documents advocating the overthrow of the government, magazines that publish child pornography, etc. could ostensibly be covered under the First Amendment umbrella.

Most people believe that you have to accept some limits as to what the First Amendment actually covers. The debate stems from where the line should be drawn.

The problem that this decision could bring in the strict constructionist camp is that it represents what is considered to be Judicial Activism. Judicial Activism occurs when the Judiciary branch issues rulings absent clear legislative instruction. In theory, a judge is supposed to take the letter of the law, check to see if the supposed violation does violate the letter of the law, and if so, rule accordingly. If not, then the person didn't break the law.

A strict constructionist would argue that because Congress hasn't legislated anything restricting what exactly was free speech, the ruling in the instant case was faulty/bad. They would say that if the people don't like what Congress has enacted; then the people will rise up and elect a new Congress who will impose the laws the people want.

There are a few problems with that approach. First, it's extremely inefficient. Often times, people don't recognize a problem until it rears its ugly head. Then, they would have to petition the government to change the law, wait for legislation to sponsor a bill, go through hearings and amendments to the bill, wait for Congress to convene, vote on the bill, send it to the President, and if he vetoed, then override the veto with a 2/3 majority, and then if it still didn't pass, then the people would have to get a new Congress that would pass it, which could take as much as six years, which would allow a large window of people slipping through the crack. Second, it requires an extremely high level of personal political accountability. That's not a bad thing, but it's quite unlikely to come to pass. We had more voters for the American Idol last year than we had for the Presidency, let alone the other positions. This demonstrates that a strict constructionist view wouldn't work for the people. There's an accountability argument here, but I won't go into that. Third, much of what is written into law is arbitrary and vague. What is liberty? When they say Congress shall make no law, does that mean Congress, or the entire legislative branch? It requires a judiciary to determine what exactly Congress did mean with what they said.

Congressman DeLay has spoken against Judicial Activism on several occasions, as have many others, and I agree that there is a limit to what liberty the judiciary has in interpreting the written law, but I don't agree that Congress should be the final word on whether something is Constitutional or what a term means, because then too much power is in one branch.

I hope this helps. I know I wrote a lot more than what you'd asked.

Michelle said...

Actually Steve what you wrote was perfect!
There is an on going issue here in Oz regarding nearly the exact same thing. We don't have a Bill of Rights,every now and again whoever is in govt will bring the fact up. After the terrorist attacks in London, it's reared its ugly head again, especially with respect to judicial activism..........the main reason for not pursuing a Bill of Rights in the first place!