[EL] Abrams & Blackman are Right...

Mon Apr 7 10:31:29 PDT 2014

Indeed.

And I was always enamored with Justice Breyer's Delphic work, no doubt in
search of "better consequences," in *Van Orden v. Perry*.

Excerpted here:

Look at Justice Breyer's First Amendment approach in the *Van Orden* case;
where the Court determined whether a religious display established a
state-sponsored religion.

In respect to the *First Amendment's* *Religion Clauses* ... there is 'no
simple and clear measure' which by precise application can readily and
invariably demark the permissible from the impermissible.  One must refer
instead to the basic *purposes* of those Clauses. They seek to assure the
fullest possible scope of religious liberty and tolerance for all.  They
seek to avoid that *divisiveness* based upon religion that promotes social
conflict.

***

[There is] no single mechanical formula that can accurately draw the
constitutional line in every case. ... One will inevitably find borderline
cases.  And in such cases, I see no test-related substitute for the
exercise of judgment. That judgment ... must remain faithful to the
underlying *purposes *of the Clauses, and it must take into account context
and consequences.

***

The case before us concerns a large granite monument bearing the text of
the Ten Commandments.  Focusing on the text of the Commandments alone
cannot conclusively resolve this case.  We must examine how the text is
*used*.  And that requires us to consider context.

***

In reaching the conclusion that the Texas display falls on the permissible
side of the constitutional line, I rely less upon a literal application of
any particular *test* than upon consideration of the basic *purposes* of
the First amendment clauses.  And as a practical matter of degree the Texas
display is unlikely to prove *divisive*.

*Van Orden v. Perry*, 545 U.S. 677 (2005) (J. Breyer, concurring).

On Mon, Apr 7, 2014 at 1:20 PM, Benjamin Barr <benjamin.barr at gmail.com>wrote:

> You're quite on to something here, Steve, that many of us have been
> hinting at in past years.
>
> But let's take a moment to celebrate Justice Breyer writing more and
> sharing more of how he exactly views the First Amendment and his
> dispensation of free speech rights to the little people.  Whenever Breyer
> takes to dissent or concur I'm especially happy because it further
> illustrates just how foreign and antithetical his thinking is to the
> maintenance of a free civil society.  Ever the more so here.
>
> Think about his dissent in *U.S. v. United Foods*, one of my all time
> favorites, which involved forcing mushroom producers to support speech
> celebrating Americans eating mushrooms.  For Breyer, the only means for
> Americans to be properly educated about their diet and just how amazing
> mushrooms are is through the use of collective force.  However else would
> average Americans know to eat mushrooms?  These are the broader "values" of
> Benjamin Constant, the masquerade of the collective, that Breyer and others
> invoke.  It's simply a never-ending game of constitutional three card
> monte.  Show the audience how much you appreciate individualist oriented
> rights (go on and speak Ms. McIntyre, we will let you!) but keep hiding
> that card in the stack while the murky values of the collective
> (manipulated and designated by political elites and lobbying forces) keep
> overriding the original protection of the First Amendment.  Fortunately,
> this is all unraveling with due speed.
>
> I'm quite content the framers already balanced these interests and decided
> in favor of individual liberty and not in favor of a Breyer Patch of
> ghastly collective interests.  I can handle deciding whether to eat
> mushrooms or not on my own (personally, I abstain).  I can handle reviewing
> the conflicting merits of global warming arguments, whether I want to use a
> Firefox Mozilla browser, whether I trust anonymous speakers, and so on.  As
> a nation, I should hope we can handle these basic acts of self-governance
> or we're rather doomed, collectively, that is.
>
> Forward,
>
> Benjamin Barr
> Counsel to Project Veritas, the Wyoming Liberty Group, and free thinkers
> nationwide
>
>
>
>
>
>
> On Mon, Apr 7, 2014 at 12:39 PM, Steve Hoersting <hoersting at gmail.com>wrote:
>
>> ... Breyer's invocation of the collective is the most disturbing part.
>>
>>
>> http://joshblackman.com/blog/2014/04/06/floyd-abrams-on-the-disturbing-recurring-reality-of-collective-liberty/
>>
>> "Egalitarian" justifications for speech restrictions -- a la Rick, a la
>> Owen Fiss -- masquerade with a patina of hyper-individualism: Every
>> individual deserves an equal, egalitarian, quanta of influence upon the
>> political process.
>>
>> But the wholly egalitarian is the wholly undifferentiated. The wholly
>> undifferentiated is the collective -- not a representative aggregation of
>> competing voices in a representative Republic; not an aggregation of the
>> voices of many individuals exercising individual rights.
>>
>> Egalitarianism tends toward collectivism.
>>
>> The distinction is not word salad; it is everything. "Collective speech"
>> is always managed (by the bureaucracy). Managed speech is always collective.
>>
>> We should be grateful to J. Breyer for naming the elephant in the room
>> and saving us a lot of trouble: Individualism and Collectivism remain the
>> argumentative poles of the campaign finance debate. (Breyer may well have
>> saved Lessig and Teachout the unnecessary effort of future verbal
>> contortions; of dressing their policy prescriptions in the Aristotelian
>> individualism of the Founders).
>>
>> There are fundamental points on which the leaders of the campaign-finance
>> camps agree upon (forthcoming protestations to the contrary,
>> notwithstanding). They are these: There are only individuals. And
>> self-government *requires* free speech.
>>
>> If I could impart anything to Rick Hasen, to Cass Sunstein, indeed, to
>> David Brooks on these points, it would be this -- and I mean it sincerely:
>>
>> Forget Kant and all his followers on matters of epistemology. The five
>> senses are valid. The individual mind works: There is no harm in voters
>> voting with "too much" information. You have nothing to fear from
>> businessmen who don't operate by force. You have nothing to fear from a
>> so-called hayseed in the "hinterlands" running his own life.
>>
>> Best regards,
>>
>> --
>> Stephen M. Hoersting
>>
>> _______________________________________________
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>> Law-election at department-lists.uci.edu
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>>
>
>

-- 
Stephen M. Hoersting
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