You Have Nothing to Lose But Your Chains!

by Dave Schuler on April 4, 2014

If this is a fair characterization, I find it pretty disturbing:

After citing Jean-Jacques Rousseau’s (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment’s purpose was to establish a “chain of communication between the people, and those, to whom they have committed the exercise of the powers of government.” Again quoting Wilson, Breyer elaborates: “This ‘chain’ would establish the necessary ‘communion of interests and sympathy of sentiments’ between the people and their representatives, so that public opinion could be channeled into effective governmental action.”

And here’s how Breyer sums it all up: “Accordingly, the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”

The emphasis on “matters” is again Breyer’s. We’d have italicized “collective” as the key concept. As with the Second Amendment, he and the other dissenters assert a “collective” right, the establishment of which is purportedly the Constitution’s ultimate purpose, as a justification for curtailing an individual right.

from which I would infer that rather than the near-absolute protection on political speech that Justice Breyer believes the federal government has the legal power to groom political speech, nearly the inverse of what I would take as the First Amendment’s purpose.

Forget Justice Ginsburg. It may be time for Justice Breyer to retire.

I have repeatedly suggested fairly severe restrictions to various political activities like campaigning, fund-raising, lobbying, and so on. I recognize those would require constitutional amendment. Other liberal democratic countries, e.g. Germany, have such restrictions without having become a totalitarian hellhole. Germany is arguably more democratic than we are. Some of the measures I’ve suggested could also be implemented by reforms in Congressional standards of ethics, which I think is about as likely as cats foreswearing mice.

I find that deciding that the federal government already has those powers to be pretty remarkable.

{ 1 comment… read it below or add one }

PD Shaw April 4, 2014 at 9:42 am

I think its a fair description. Though Breyer only uses the word “collective” once in his dissent, it appears at the summation of what the First Amendment is about. Its at the pivot point in his opinion, where he then applies these principles to the issue at hand. (Roberts attacks the “collective” language more than once; perhaps understanding that the term is problematic, but also I suspect Breyer is trying to build a case for a Constitutional view that would have broader applications in matters such as some form of the Fairness Doctrine)

Breyer is perhaps the most statist judge on the bench; the most likely to defer to the state control of campaign finance, and usually defers to the police in search and seizure cases. I am a little more surprised that the other liberals joined him without separate comment. There were other ways to write the dissent.

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