| Subject: Re: [EL] 12 Months After: The Effect of Citizens United |
| From: Jon Roland |
| Date: 1/20/2011, 9:35 AM |
| To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu> |
Reply-to: "jon.roland@constitution.org" |
A complete education should achieve the ability to execute an unbroken deductive chain from first principles to final conclusions. By my standards few persons today are truly educated, which requires more than mastery of a narrow specialty.I’m pretty sure the people on this list are actually educated, and not just seemingly educated.
No, but too many of the contributions to this thread fail to present a logically coherent exposition of different approaches. They seem to start with a desired result and reach backward without ever reaching a coherent set of first principles. I would be happy to see such expositions, but some need to be more diligent.Nor does one have to be “confus[ed]” to disagree on the subject; one just has to have a different approach to matters.
Congress has no authority to restrict death threats, except perhaps in the exercise of its apparent police powers on the territory of federal enclaves. I find the language of the First Amendment, adopted after the Writings and Discoveries Clause, actually does forbid Congress to restrict anyone for disseminating copyrighted materials, although it retains a judicial jurisdiction for civil actions on that, and allows for judicial jurisdictions for private actions on defamation and libel. The power to create a monopoly is not the power to enforce it legislatively. That might not have been the intent of the framers of the First, but they adopted the language they adopted. As for courts, they are often confused, as are the arguments made to them, and when we accept confused precedents, the confusion is propagated.In particular, there are plenty of educated and thoughtful scholars who do not think “No law” can actually mean “no law” (at least no law restricting speech), when that would mean that death threats, copyright infringement, and a variety of other speech that should be constitutionally unprotected and that has never been seen as constitutionally protected.
I invite any of those to develop comparably coherent lines of argument to support their positions.Likewise, there are plenty of such scholars who do not share Mr. Roland’s view either about the non-incorporation of the First Amendment or the supposed inherent applicability of the Ninth.
It is not about disagreement. This is an educational activity, in which we are all mutually students and instructors. It is not inappropriate to offer constructive criticisms of the rigor of the reasoning exhibited. Better to do that here where we can strive to improve our reasoning and exposition skills, than in other forums where we might confuse others. I welcome attempts by others to find flaws in my reasoning or shortcomings in my reasoning or exposition skills. But it is not enough to say that others disagree. Disagreements must be expanded into deductive chains, so that flaws can be brought out and examined.I think Mr. Roland and I probably actually agree on the bottom line as to Citizens United (though likely not the reasoning). My point is simply that one can and should disagree without casting aspersions on others’ education, or assuming that people who don’t share your views are therefore necessarily confused.
-- Jon ---------------------------------------------------------- Constitution Society http://constitution.org 2900 W Anderson Ln C-200-322 Austin, TX 78757 512/299-5001 jon.roland@constitution.org ----------------------------------------------------------