Misunderstanding history...
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Normally, Clayton Cramer gets his history right. But he's got a
bug about some things (one fairly typical of conservatives), and as a
libertarian it tends to rub me the wrong way occasionally. Now,
it seems he's forgotten his history in favor of his (arguably rational)
prejudices; in the context of an attack on the ACLU, he's making the
argument that the Constitution cannot protect activities that were
universally considered criminal by the original United States at the
time the Constitution was ratified. I won't dispute the fact that the ACLU is often insane. Nevertheless they do fill a necessary role when they are not acting as political attack dogs; someone does need to defend our principles even in cases that make for poor public relations. But the point is to address Clayton's claims about constitutional protections: It has argued (successfully, to the idiots that control the Supreme Court) that virtual child pornography is protected by the First Amendment--even though it is very clear that this would have been unlawful in every state when the states ratified the First Amendment.I think banning real child pornography (ie, made with real children) is reasonable. It cannot be made legally; it involves the commission of a serious crime. Banning "fake" child pornography is probably a good social policy, albeit impossible to enforce, but does present Constitutional issues, even if it would be universally illegal in the original 13 States. Why? The First Amendment was originally intended to bind only the Federal Government. The States could regulate speech to a greater or lesser degree, depending on their own Constitution. The Federal Government was barred from doing so, but this did not apply to the States. The Federal Government was not empowered to ban speech of any kind, and the First Amendment then actively barred it from doing so in the guise of some other activity which it was empowered to perform. The Bill of Rights was not applied to the States until the 14th Amendment. At that point the States were explicitly bound by the Bill of Rights (and later court decisions have reinforced this principle). If the Bill of Rights contained broader protections for a right than the State Constitution, then something which could be outlawed under the State Constitution might become protected exercise of a right. That was in fact the explicit intent of the Amendment; States were no longer trusted to respect the rights of their population. Does that make sodomy a protected right? The Supreme Court thinks so; I don't see any explicit protection for it in the Federal Constitution. On the other hand, it's none of my business and none of the government's business what consenting adults do in the privacy of their own home. But Clayton, if you're going to make the case for overturning Lawrence v Texas, you need to do so based on something more solid than a misunderstanding of federalism. |
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