Dissenting from Scalia
It's never reassuring to find oneself in disagreement with Justice Antonin Scalia.
I'd pay good money to rent the house next door to him during the Court's summer breaks. Wouldn't it be a grand opportunity to learn at the feet of one of America's wisest and wittiest jurists? If I had to choose among Justice Scalia, Senator Patrick Moynihan and Bobby Fischer...Hmmm.
But alas, instead of taking on Fischer's onslaught mano a mano, I settle for computer simulations of his play style. Likewise, I can confront Scalia's challenging arguments only as presented in his Court writings. In both cases, even if I lose I still win, so long as my mistakes are exposed for me to learn from.
From his dissent in Hill v. Colorado, a case in which the Court upheld a state law mandating an eight-foot "no protest" zone around abortuaries, Scalia writes:
If you've read my earlier posts on the aim of freedom of speech and one appropriate restriction thereof, it should be immediately apparent that I disagree with Scalia here. I'm no fan of baby-butchery, mind you. (I fancy myself too sane for such savagery.) But I cannot reconcile my understanding of the founders' First Amendment aim with what I'm reading here from Scalia, who himself referred to, in McConnell v. FEC, "the heart of what the First Amendment is meant to protect: the right to criticize the government."
Nor do I find it easy to understand his vote to invalidate the federal prohibition of flag-burning in U.S. v. Eichman. The only mitigating factor in this instance is that he perceived the law "was aimed directly and unconstitutionally at suppressing a manner of communicating opposition to the U.S. government and its policies." (From Kevin Ring's Scalia Dissents.)
But the burning of the American flag presents no argument whatsoever. Instead it appeals directly to emotion rather than reason. (More on that insidious tactic in a future post.) In my (admittedly idealized) view of the First Amendment's aim, the absence of argument means that flag-burning warrants no protection under the First Amendment. For how can anyone engage a reasoned debate when the "proposition" is expressed in an action or image rather than words??
"But we have the right to protest!" you reply. If we do - and yes, I believe we do - that right arises not from the First Amendment's protection of speech but of assembly. The speech in which we engage during our protests is protected, of course. But where is to be found the supposed protection of our action? (Or what would we think if Scalia, rather than penning an intelligible dissent, simply burned a copy of the Court's opinion on the steps of the Supreme Court building?)
As for me, I support the prohibition of flag-burning - not on the grounds of suppressing dissent, but because it is an insult to this nation. I support the removal of protest-tshirt-wearing Cindy Sheehan from the State of the Union Address assembly for the same reason.
Our dissenting views concerning our elected and appointed officials and their policies ought to be stated and debated. But when we express our dissent by abandoning the proper respect for our nation and its governing offices....
Robert Post wrote:
When we abandon confidence in our form of government, we've begun the downhill slide toward our nation's dismantling. The offices and processes established by the Constitution constitute this nation. And insofar as our disrespect for the offices, processes, symbols and occasions which comprise our form of government destroys our confidence in and "authorship" of it, such disrespect contributes to America's ruin.
I'd pay good money to rent the house next door to him during the Court's summer breaks. Wouldn't it be a grand opportunity to learn at the feet of one of America's wisest and wittiest jurists? If I had to choose among Justice Scalia, Senator Patrick Moynihan and Bobby Fischer...Hmmm.
But alas, instead of taking on Fischer's onslaught mano a mano, I settle for computer simulations of his play style. Likewise, I can confront Scalia's challenging arguments only as presented in his Court writings. In both cases, even if I lose I still win, so long as my mistakes are exposed for me to learn from.
From his dissent in Hill v. Colorado, a case in which the Court upheld a state law mandating an eight-foot "no protest" zone around abortuaries, Scalia writes:
"Uninhibited, robust, and wide open" debate is replaced by the power of the State to protect an unheard-of "right to be left alone" on the public streets.
If you've read my earlier posts on the aim of freedom of speech and one appropriate restriction thereof, it should be immediately apparent that I disagree with Scalia here. I'm no fan of baby-butchery, mind you. (I fancy myself too sane for such savagery.) But I cannot reconcile my understanding of the founders' First Amendment aim with what I'm reading here from Scalia, who himself referred to, in McConnell v. FEC, "the heart of what the First Amendment is meant to protect: the right to criticize the government."
Nor do I find it easy to understand his vote to invalidate the federal prohibition of flag-burning in U.S. v. Eichman. The only mitigating factor in this instance is that he perceived the law "was aimed directly and unconstitutionally at suppressing a manner of communicating opposition to the U.S. government and its policies." (From Kevin Ring's Scalia Dissents.)
But the burning of the American flag presents no argument whatsoever. Instead it appeals directly to emotion rather than reason. (More on that insidious tactic in a future post.) In my (admittedly idealized) view of the First Amendment's aim, the absence of argument means that flag-burning warrants no protection under the First Amendment. For how can anyone engage a reasoned debate when the "proposition" is expressed in an action or image rather than words??
"But we have the right to protest!" you reply. If we do - and yes, I believe we do - that right arises not from the First Amendment's protection of speech but of assembly. The speech in which we engage during our protests is protected, of course. But where is to be found the supposed protection of our action? (Or what would we think if Scalia, rather than penning an intelligible dissent, simply burned a copy of the Court's opinion on the steps of the Supreme Court building?)
As for me, I support the prohibition of flag-burning - not on the grounds of suppressing dissent, but because it is an insult to this nation. I support the removal of protest-tshirt-wearing Cindy Sheehan from the State of the Union Address assembly for the same reason.
Our dissenting views concerning our elected and appointed officials and their policies ought to be stated and debated. But when we express our dissent by abandoning the proper respect for our nation and its governing offices....
Robert Post wrote:
Democratic states...embody the value of collective self-governance, which requires that citizens come to accept their own "authorship" of state actions and choices, or at least of the deliberative procedures through which the state reaches its decisions.
...
Democratic states remain democratic in part because each individual citizen is offered the opportunity to persuade others to alter those decisions that (he) may find objectionable.
When we abandon confidence in our form of government, we've begun the downhill slide toward our nation's dismantling. The offices and processes established by the Constitution constitute this nation. And insofar as our disrespect for the offices, processes, symbols and occasions which comprise our form of government destroys our confidence in and "authorship" of it, such disrespect contributes to America's ruin.
posted by Lear's Fool | 5:18 PM
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