Monday, March 07, 2005


The FEC flap I mentioned is still ongoing but I have yet to hear more than the FEC's "don't worry, you can trust us" press release. Over at Power Line, Scott Johnson (a.k.a. The Big Trunk) was also unimpressed with the FEC's comments. The decision, he writes, does not limit the FEC to regulating paid ads at all, and that's where the potential for regulating the speech comes in.

I note that Hugh Hewitt is unconcerned about all this and basically says, "it ain't gonna happen." (OK, he's a lot more eloquent than that, but you get the point.) Given the fact that the Supreme Court has already ruled that the speech-blackout provisions of McCain-Feingold are, in fact, constitutional, I'm unsure where he's getting all this confidence from. With the propensity of certain government bodies to classify more and more things as being, basically, a cash contribution, I don't feel it's so far out of the ballpark for them to conclude that a mention on Hugh's blog would constitute a campaign donation, which is precisely what Commissioner Smith was talking about.

The Supreme Court itself has been far less willing to remain constrained by the Constitution, too. Their recent take on the case regarding the States' application of the death penalty to criminals who committed their crimes before they turned 18 is very troubling since they appear all too eager to sideline the text of both the Constitution and the rest of our body of law in favor of their personal beliefs backed up with reference to foreign law.

::::::::The most controversial aspect of the Roper decision has been its reliance on foreign law. In recent years, the Court has, on several occasions, bolstered its opinions by arguing that its conclusions are consistent with public opinion in countries other than the United States. This form of reasoning, which has no apparent basis in our Constitution or statutes, seems to have come to full fruition in Roper.

Justice Kennedy tried to articulate a rationale for referring to the laws of other countries. It is not unfair to say, however, that his attempted rationale consists of nothing but fine words, which contain no explanation of how, why, and when the opinions of non-Americans become relevant to our Constitutional jurisprudence:

"It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime."

Kennedy continues:

"The opinion of the world community, while not controlling the outcome, does provide respected and significant confirmation for our own conclusions."

He concludes:

"It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmations of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom."

Which raises two questions: Isn't weighing the "instability and emotional imbalance of young people" exactly the kind of thing that legislatures--the peoples' elected representatives--are supposed to do? And why, if the Court's conclusions are based on the Constitution and laws of the United States, is "the opinion of the world community" a factor in the Court's conclusion?

It does "lessen [the Court's] fidelity to the Constitution" when the Court gives the actions of foreign governments priority over the text of the Constitution, the laws enacted, in this case, by the legislatures of 20 states, and the clearly expressed preferences of the majority of Americans. With all due respect to the Court's majority, there is simply no coherent rationale for counting the "enlightened" opinion of foreign governments as a factor in Constitutional jurisprudence.

There are many, many examples in foreign law of speech being regulated. You'd like to think that there's no way the "Men In Black" would substitute "the overwhelming weight of international opinion" for the directives expressed in the document of our highest law, but is that justified in light of their recent moves?