Wednesday, July 2, 2008

The Supreme Court: Activists, Conservatives & Individual Rights

Progressives, those who profess to be the defenders of civil rights against the centralization and accretion of government power are standing reality on its head. In terms of our traditional rights to freedom of speech, freedom to own property and the like, and not to mention right to own weapons, progressives, and their judicial counterpart, activist judges, regularly act to limit our traditional civil rights. This is often accompanied by imposing new "rights" outside of the text of the Constitution. David Bernstein discusses this as part of an article on the Supreme Court that he wrote for the CATO Institute:
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This from Mr. Bernstein:

The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides.

Or perhaps it's not as remarkable as we've been led to think. Consider the Court's First Amendment decisions. Contrary to popular belief, conservative justices are about as likely to vote in favor of individuals bringing First Amendment challenges to government regulations as are the liberals. Indeed, the justice most likely to vote to uphold a First Amendment claim is the "conservative" Justice Anthony Kennedy. The least likely is the "liberal" Justice Stephen Breyer. Consistent with general conservative/liberal patterns in commercial speech cases, Justices Clarence Thomas and Antonin Scalia have voted to invalidate restrictions on advertising more than 75 percent of the time. Justices Breyer and Ruth Bader Ginsburg, meanwhile, have voted to uphold such restrictions in most cases.

Conservative justices also typically vote to limit the government's ability to regulate election-related speech, while liberal justices are willing to uphold virtually any regulation in the name of "campaign finance reform." . . .

Liberals have also been more willing than conservatives to limit the First Amendment's protection of "expressive association." The Court's conservatives held that forcing the Boy Scouts of America to employ a gay scoutmaster violated the Scouts' right to promote its belief in traditional sexual morality. The liberal dissenters thought the government should be allowed to force the Scouts to present a message inconsistent with the Scouts' values.

The Fifth Amendment's protection of property rights presents, if anything, an even starker example of greater commitment to individual rights by the conservative majority. In the infamous Kelo v. New London, the Court's liberal justices, joined by Justice Kennedy, held that the government may take an individual's property and turn it over to a private party for commercial use. The four conservative dissenters argued that such actions violate the Fifth Amendment's requirement that government takings be for "public use."

A few years earlier, the Court's conservative majority held that a government regulation that deprives a land owner of any use of his property amounts to a "taking" that requires compensation. The liberal dissenters would have permitted the government to totally wipe out an individual's investment without any redress.

And consider the issue of government use of racial classifications. Liberal justices have been willing to uphold virtually any use of race by the government--including quotas in higher education, set-asides for government contracts, and raced-based assignments of students to public schools--so long as the government claims benign motives. The conservatives, by contrast, argue that the government must treat people as individuals, not as members of a racial caste.

Other examples could be raised. The conservatives, for example, have been more sympathetic to free exercise of religion claims than the liberals, and more inclined to forbid government regulation of "hate speech."

The point should be clear. There are many ideological differences between the conservative and liberal justices on the Supreme Court. But a consistent, stronger liberal devotion to supporting individual rights and civil liberties against assertions of government power isn't one of them.


Read the entire article. Don't expect this truisim to get repeated too often. And where it does, expect the point to be shouted down by the progressives who really do not want you to exercise those First Amendment rights.


1 comment:

JMB said...

Thanks For the post GW and Mr. Bernstein Nevertheless, The very worst future for our American people, is for them to have absolutely no say so, as to these things that are affecting their own families right of conscience, this is of the purest of indicators, that our people are now bound certain to this non-alternative fate. These are the very bindings of their cause, to forcibly habituate our people through absolute Judicial rule. This is the future farming of all human conditions, by those who are requiring of no more then five of their own agreements, that they should have this random access to our own seed. I therefore reject this unrelenting and unforgiving premise that if these Gods have spoken, it must be so. A government that has as little flexibility, to listen to the people, as these courts have so ordered, has now relieved me and all my fellow citizens of any true representation whatsoever.
Gw-Great Comments you made.