The Other Michael

Leviathan,

You are free to ignore Toto everywhere on IIDB, except in the forum where he is a moderator and when he is speaking as a moderator.

I'm not aware of any vBulletin option that lets you specify a specific forum or fora for the ignore feature, so I'd suggest that you are best off not putting Toto on "ignore" as long as you are making a practice of posting in this forum where he is a moderator.

Putting a moderator on your ignore list, and then failing to see a post in which the moderator has addressed you in his official capacity, could jeopardize your posting privleges.

Michael
Administrator

StrictSeparationist

Please reference the paragraph from Justice Holmes I provided. You state you've read it enough to know its content, well then please take the few seconds to read the bolded material, and tell me how that is not supporting my interpretation of Schenck. Please allow me the time to explain why:

"We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Holmes is recognizing the sensitive nature of the First Amendment right to freedom of speech, during a war, and perhaps how those rights will bend to the interests of the majority, when there is a "clear and present danger."

Both here and with the next quote, you summarize what Holmes is saying, then add your own comment about deference to the majority. Holmes is not making the case for increased restrictions on free speech based on popular support for World War I (indeed, he would be unwise to, since historians think that throughout the war, there was probably less public support for the conflict than there was for the Vietnam War during the height of the protest years). He simply notes that the country is at war, and as such certain types of speech that may be permissible during peacetime cannot be countenanced when American troops are in the field. I happen to disagree with Holmes on this point, but that isn't the point of this thread, of course.

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress [***474] has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."

Here, Holmes is recognizing Congress' duty of curing evils perceived by the populace. One of those evils is the expression of dissident ideas that are a threat to the government, during a time of war. In the Court's opinion, such threats create a "clear and present danger," and therefore Congress "has a right to prevent" these acts of speech, even if there is a "supposed" violation to the First Amendment. As Holmes alluded to earlier in the paragraph, such rights may change based upon the circumstances of the speech. That's why he said the inquiry was one of "proximity and degree."

In fact, Holmes says nothing about the source of Congressional authority to enact legislation such as the Espionage Act, and it seems to be implied in the opinion that even if a majority of the American people did not perceive dissident ideas to be an evil, or at least not an evil requiring a "cure" as excessive as the Espionage Act, that would not in any way lessen Congress' authority to prevent "substantive evils". The Constitution is silent on the subject of majority rule except in the sections where it provides for elections that seem to reflect that principle on some level. Nowhere in the Constitution of 1917 or that of today can be found a section that provides for the nullification of Congressional legislation on the grounds that it conflicts with the views of the majority.

Holmes makes note of the Congressional authority to address evils, and how the court must balance that against the rights of the individual. Holmes even goes as far as to make the admission that, absent a war-situation, the defendant's speech *probably* is protected by the First Amendment.

Again, this has nothing to do with a popular majority. We have here a simple case of the government versus the individual. Your assumption that Congressional action can be interpreted as always having popular sanction is a) not reflective of reality and b) not implied in the Schenck opinion.

Thus, this case seems to be a clear-cut example of weighing the interests of the majority, through legislation and Congressional findings, the Espionage Act, versus the rights of the individual, the prohibition against restrictions on the freedom of speech, during wartime, via the Constitution. That's what I dub, a "deference"case, when the court errs on the side of the majority. The Court applies the correct level of judicial scrutiny, and defers to the Congressional findings of a "clear and present" danger. Seems pretty clear cut to me.

It's not so clear cut to observors of your train of thought, mostly because of specious but ultimately unfounded assumptions concerning the relationship between Congressional action and majority sanction and the Supreme Court's recognition of that relationship.

Additionally, your argument concerning the EC not creating a right, I just find problematic. The EC provides that all American citizens will be free from their government establishing a religion in society. How is that *not* a substantive right?

In fact, the Establishment Clause doesn't guarantee the right of the citizenry to be free of government religious establishment, and courts have never interepreted it that way. In order to understand that, you've got to acknowledge that there is an obvious difference between a prohibition on a certain type of action and a third party's personal right to be free of such an action. Though the practical effect is often the same, when you're talking about the law that isn't really good enough.

The way a right to be free of government religious establishment would be enforced would be that any citizen who is under the jurisdiction of a certain governing body would be able to bring suit and challenge a practice perceived to be respecting an establishment of religion. A court's only mission in enforcing such a right would be to determine whether or not the challenged practice is in fact what the plaintiff alleges. If the court determined that it was, it would be bound to take steps to end the challenged practice. Simple- no issues of standing or justiciability. Such a right would clearly preclude the Supreme Court's decision in the Valley Forge case, which I cited in my last post.

While I agree with the majority's implicit reasoning in that case that the Establishment Clause does not create an enforceable right and that thus the suit at issue had to be dismissed under the "cases or controversies" requirement of Article III, I abhor the practical result of the decision. That result is that in order to have standing in an Establishment Clause case, one must first make a case that has nothing to do with the First Amendment. Presumably, to show actual personal injury in a case in which the plaintiff incurred neither physical nor economic harm, the plaintiff would need to show some sort of emotional injury substantial enough to confer standing. There is nothing in the Constitution that gives the right to be free of offensive government conduct, and yet presupposing such a right seems to be practically the only way (other than the narrow category of taxpayer suit) that a practice that really harms no one in its tendancy to establish religion could be challenged.

There's no easy solution to that problem, but clearly a court or system of courts that is not constrained by the Cases or Controversies Clause needs to be set up in order to review Establishment Clause violations that don't necessarily offer injury to any person or organization. To do otherwise is to give the Establishment Clause no effect at all on lots of important issues.

Jewel

Leviathan,

I have been following this thread and your arguments have been throroughly attacked but you have not. I, personally, am not going to take action where none is needed. If you wish to complain about the moderation I suggest you open up a thread in Bugs -- further in thread complaints will be deleted.

-Jewel
Moderator CSS&SA

Leviathan

Leviathan -- I have edited out the in thread complaint about your moderation. You have been asked repeatedly to take your complaints to the Bug's and Complaints forum. I suggest you do so.

-Jewel
Moderator -- CSS&SA





Strict Seperationist:

Of course its the purpose of this thread, the citations I have provided evidence Holmes' belief that the nature of our First Amendment rights will sway when the legislature has new threats they have to deal with, such as dissident speech. Your historical analysis of support of WWI is irrelevant: the Supreme Court does not base their decisions on what is popular, but what is constitutional.

Here, Holmes is telling us that what is constitutional will change, predicated on the circumstances our nation finds itself. That's wh he makes the specific reference to the evils that Congress has the "duty" to remedy.

Are we reading the same paragraph? Holmes specifically references Congressional authority to combat "clear and present" dangers to stability. Again, "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress [***474] has a right to prevent. It is a question of proximity and degree." Congress is the majority will of this nation, they pass laws that the people in Congress believe are for supported by a majority of this nation: that is the sheer essence of a republican form of government, guaranteed by the Constitution, and in action when the Espionage Act was passed. Thus, reflecting on the Congressional authority to combat a "clear and present danger," Holmes recognized that the individual right(s) of the First Amendment prohibition of freedom of speech must be balanced in a war-time setting, concerning dissident speech which threatened the sanctity of the government.

How is that *not* a balancing of governmental authority, via the majority will, versus that of the individual's rights? Ie, how is that *not* a debate about how much deference to give the majority will on a given topic?

I respectfully submit my analysis is supported by this evidence. You have offered no evidence to the contrary, only your own interpretation of Schenck, which I find faulty.

It has everything to do with a popular majority: the lesson of any civics 101 college course is balancing governmental power versus individual freedom. Schenck is an *excellent* example of this debate.

Your bolded statement is merely operative of a different philosophy concerning democratic government. You seem to be in line with the public choice theorists. The assumption of a republican form of government is that the laws passed by the Congress are the majority will of this nation: thats the entire philosophical basis of our government. If you wish to criticize that philosophy, fine, but our Court system and legislature operate from that assumption. When looking to "Congressional intent," courts examine what is the "majority will," and they ascertain that will from what laws Congress has passed. Example: when the High Court struck down the death penalty for the mentally handicapped last year, Atkins v. Virginia, the majority made note of the fact that numerous states had passed laws banning the use of the DP for the MH. Thus, (I believe it was) Justice Ginsburg argued that it may be inferred from these recent laws being passed, that the majority of individuals in this nation found it problematic to apply the DP to the Mentally Handicapped.

Thus, its part of our system, and Holmes is recognizing this when he speaks to the authority of Congress to rectify social ills such as dissident speach during war.

The rest of the discussion, applying this analysis to the EC, need not be reviewed, until the groundrules are agreed upon. You may choose to find such an analysis "specious", full of "unfounded assumptions" all you want, but it is my position that the High Court, the inferior courts, and the numerous legislatures of this nation operate from such an assumption. What does democracy mean to you, if not that the majority will is evidenced through the laws that are passed? Will you offer the general critique that politicians are all simply selfish creatures, and ignore the will of their constitutuents? What other alternative will you offer, to this "specious" model?

StrictSeparationist

Leviathan: Let me just acknowledge that you're quite right in that my discussion of whether or not Congress' power flows from the people or not is indeed a philisophical or political science argument and not a constitutional one. I'll return to the constitutional argument that I originally made, which is that the "deference" factor that you seem to imply had some major part in the decision in Schenck is one that comes up in nearly every Bill of Rights case. Every time that someone asserts a certain right or tries to stop the government in acting in a certain way and the conflict ends up in court, it means that in all likelihood that person is in the minority on whatever issue is being litigated. If there was a political majority behind that person's views, then there would be no problem at all. Thus, since the "deference" argument shows up in so many constitutional cases, I fail to see the logic behind emphasizing it so much when it in fact plays such a small role in the average case. In most cases (Schenck is one of them), it receives no discussion at all from the court that decides the case. Again, I respectfully submit that your classification scheme is nonsensical.

If you can answer that, please do spend some time addressing the Establishment Clause discussion from my last post, as I believe it raises some important issues that have nothing to do with the whole deference controversy. That whole section was in response to your assertion that the Establishment Clause creates a "substantive right" to "be free from their government establishing a religion in society".

Leviathan

Well that acknowledgement is a step at least.

I agree, so what's the issue?

My argument has been the proclivity to weigh majority v. individual interest(s) are most prevalent in what area of the Constitution...

The First Amendment.

You are mimicing your continued statements that you believe Schenck didn't talk about it: I disagree, have offered my reasons why, and you simply repeat your belief. Ok, good. End of story?

I will address the EC position when we're crystal clear on Schenck : I've cited, bolded, and cited again, the paragraph and reasons for why I believe my interpretation of Schenck is correct. I am puzzled why my general thesis is met with such vehement opposition here: it is simply a fact that an antimajoritarian body, applying and thus implicitly enforcing the laws of the majority will have to balance the rights of the individual v. the rights of society.

And the most tenuous area that those "balances" will take place, are in those "most sacred" rights the society holds to be protected. For the US, that's the First Amendment.

Stephen Maturin

No need to rush on my account, Leviathan. I'm up to my ass in alligators at work right about now, so I won't be able to do much in the way of detailed responses for awhile. Besides, it looks as though StrictSeparationist has entered the fray in earnest, and he knows a lot more about this Establishment Clause stuff than I do anyway.

StrictSeparationist

Leviathan, as long as you agree that the deference you speak of comes up in almost every Bill of Rights case, then that was my point. The only problem I have with emphasizing it is that it seems to me rather like dividing the entire human race into two groups: the more than six billion who have only one head, and then the infintesimally small group of people who have two (or, if you like, two people with one body). The classification of Bill of Rights cases using the "deference to the majority" factor to me seems to be similarly illogical. But as long as you realize that it's very common for that issue to come up, that's all I was trying to say.

With regards to Schenck, I would say my problem with the way you discussed it is that it seemed to me you were implying that the deference factor was the most important one in the decision of the case, when in fact it's clear that the factor that Holmes gives the most weight to is really the time, place, and manner of Schenck's actions (although of course that phrase had not yet become popular in constitutional law). Other than that, I would agree that the conflict between the majority and the individual is there, but that that conflict is not determinitive in deciding the case.

Now, if we're all square about that, I believe what you're saying is that the Pledge of Allegiance is one area in which the courts should defer to popular opinion and allow "under God" to stand. I would disagree for two main reasons.

First of all, the 1954 Act that amended the Pledge to include the above-mentioned phrase is in direct conflict with the prevailing standard for Establishment Clause review, namely the Lemon test. To my knowledge, you haven't yet gotten around to answering this part of the separationist argument in this thread.

Second, the popular majority that is in favor of preserving the current Pledge has no real, defensible interest in doing so. Currently, people who don't believe in any deity are being coerced into saying that they do every school day. This could be easily remedied by throwing out the current Pledge. If that's done, theists won't be similarly oppressed. They have always been free to engage in prayer and, if they wish, the Pledge of Allegiance with whatever words they like best during any free time during the school day.

Leviathan

Yes, I understand. Do you understand my point, that the area of the Bill of Rights where this "balancing" is most prevalent is the First Amendment? Are you agreeing, disagreeing, or lost as to what I'm sayng? We can make inferential categorizations of legal jurisprudence, based on the area of the Bill of Rights? Thus, we can group the First Amendment? Does that make sense? Am I asking too many questions?


My understanding is clear: the Court constantly uses deference as a legal reasoning tool, in analyzing any case, but it is MOST PREVALENT in First Amendment cases, b/c those are the most "sacred rights" of all the rights we have.

I see, but don't you see my point is that the deference argument in Schenck is CONTINGENT on that "time and place" recognition you made? Are you following me? I keep having to go back to the bolded sentence, regarding the "evils" that "Congress has the duty to address." Holmes clearly admits the speech would be constitutional, probably, in an anti-war setting, but given the specific circumstances (the part you see), the majority's interest in protecting the stability of this nation from dissidents, increases given those circumstances.

Well, you're 98% correct. The reason to entertain this deference argument is in addressing "part c" of Stephen's inquiry.

As previously stated, I have argued that this entire issue, the resolution of it, is contingent on how you answer one question:

What is the Pledge?
a. A religious act
b. A political act
c. Both a religious and political act

My argument is this:
If we accept A, Stephen, you, and all the others, are probably correct in your legal argument.
If we accept B, my argument is probably correct.
If we accept C, Stephen's position, my argument is that, as is constantly the case in the High Court's Jurisprudence, if the court can find "another reason" to justify the statute (such as finding it is a political act, in addition to a religious act), then the Court can accept the Pledge, even if it is partly a religious act. This "other findings" position is prevalent in 14th Amendment jurisprudence concerning equal protection (that's where I've studied it, I believe its in other areas too).

Correct, we haven't addressed that [Lemon]. I am moving back to school tommorrow, and could not find my copy of Newdow to review. I've been quite busy with your arguments as well.

Additionally, your argument concerning the 1954 Act is only true if we presume that the purpose of the legislative act was merely a religious insertion into the Pledge. My argument is that the 1954 act concerned two political institutions, American democracy versus Russian communism, and the American people passed the law as a symbol to recognize this nation was founded on Christian principles, by Christian people, fleeing religious oppression, in direct contrast to the Russian establishment of its "secular" state.

We will get to the Lemon test soon.

No defensible interest? What of Justice O'Connor's argument that it "preserves the future," etc, and recognizes history? You see no interest of the millions of Christians in maintaining the understanding of where this nation came from? Some folks in this country are very patriotic, and you see no "defensible" interest? I respectfully disagree.

But lets throw a monkey wrench into the rest of your argument there... You said that I, and other Christians, would have the right to say "under God" in the Pledge, if we wanted. Suppose Christians, in protest to the S.Ct. upholding Newdow, decided to make a protest around the nation, and said "under God" in every Pledge recitation they made.

Regardless of the state's "intrusion", wouldn't the state's allowance of these citizens reciting this still constitute "psychological coercion" of the atheist children?

Bill Snedden

I'll give my two cents...

The Constitution doesn't dictate that our rights be protected against such "psychological coercion" as long as it isn't mandated by the State. As long as citizens are saying "under god" by choice and not by mandate, then there's no issue.

IMO, it would be the same as if every Christian schoolchild chose to pray out loud before meals. While it might be discomfiting to non-Christian children, it doesn't appear to me to contravene the Constitution and thus there's no remedy.

Regards,

Bill Snedden