Monthly Archives: June 2007

Banning The Fairness Doctrine

Constitution, Free Speech, Individual Rights

Congressman Mike Pence has introduced a bill in the House of Representatives that would prevent the Federal Communications Commission from bringing back the so-called Fairness Doctrine without Congressional approval:

WASHINGTON – A Republican lawmaker wants to forestall any potential reversal of federal rules that allow talk radio to broadcast one side of an issue without an opposing viewpoint.

Rep. Mike Pence, R-Ind., announced Wednesday that he plans to introduce a bill Thursday that would prevent any future president or the Federal Communications Commission from reinstating the Fairness Doctrine, the FCC regulation that aimed to ensure that controversial issues broadcast on the airwaves were balanced and fair with contrasting points of view. The rule was revoked in 1985.

“There’s nothing fair about the Fairness Doctrine,” said Pence, a former syndicated talk radio host.

“Bringing back the Fairness Doctrine would amount to nothing more than government control over political views expressed on the public awareness and it must not be allowed to occur,” Pence said on the House floor.

Pence’s bill is meant as a pre-emptive strike against a growing backlash in Congress over the dominance of conservative hosts on talk radio. Some Democrats have expressed interest in reinstating the FCC requirement so as to force balance between conservative and liberal hosts on the airwaves.

Given what has been coming out of Washington lately, a law like this is long overdue:

The No. 2 Democrat in the Senate, Dick Durbin of Illinois, said he believes Americans want to hear opposing viewpoints.

“It’s time to reinstitute the Fairness Doctrine,” Durbin said in a report in The Hill newspaper. “I have this old-fashioned attitude that when Americans hear both sides of the story, they’re in a better position to make a decision.”

Sen. Dianne Feinstein told “FOX News Sunday” that she was reviewing the Fairness Doctrine because “talk radio is overwhelmingly one way.”

“In my view, talk radio tends to be one-sided. It also tends to be dwelling in hyperbole. It’s explosive. It pushes people to, I think, extreme views without a lot of information,” said Feinstein, D-Calif.

And there have been similar comments from John Kerry:

Senator John Kerry is calling for reimposition of the fairness doctrine.

In a radio interview on WNYC’s The Brian Lehrer Show, excerpted on YouTube , Senator Kerry said he thought the doctrine should return. Calling it one of the “most profound changes in the balance of the media,” he said conservatives have been able to “squeeze down and sqeeze out opinion of opposing views. I think it has been a very important transition in the imbalance of our public dialog,” he said.

Kerry joins what appears to be a growing Democratic push-back against conservative talk radio, which flowered after the FCC in 1987 declared that the doctrine was unconstitutional. Rep. Dennis Kucinich (D-Ohio) has called for the doctrine’s return, and Senator Diane Feinstein 9D-Calif,) says she is looking into it.

And here’s the YouTube piece:

Bush is a disaster, but thank God that guy never became President.

Doug Mataconis
http://www.belowthebeltway.com

Supreme Court Severely Limits Affirmative Action

Constitution, Equal Protection, Individual Rights

In two decisions today the Supreme Court severely limited the ability of public school systems to use race as a factor in assigning students to schools:

WASHINGTON — The Supreme Court on Thursday rejected integration plans in two major public school districts but left the door open for the limited use of race to achieve diversity in schools.

The decision in cases affecting how students are assigned to schools in Louisville, Ky., and Seattle could imperil similar plans in hundreds of districts nationwide, and it further restricted how public school systems may attain racial diversity.

The court split, 5-4, with Chief Justice John Roberts announcing the court’s judgment. The court’s four liberal justices dissented.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts said.

Yet Justice Anthony Kennedy would not go as far as the other four conservative justices, saying in a concurring opinion that race may be a component of school plans designed to achieve diversity.

To the extent that Roberts’ opinion could be interpreted to foreclose the use of race in any circumstance, Kennedy said, “I disagree with that reasoning.”

“A district may consider it a compelling interest to achieve a diverse student population,” Kennedy said. “Race may be one component of that diversity.”

He agreed with Roberts that the plans in Louisville and Seattle violated constitutional guarantees of equal protection

Because of Kennedy’s unwillingness to sign on to Roberts’ opinions, of course, the decisions do not go as far as they might have, but it is certainly a substantial step toward ending the idea that it is ever permissible for the government to discriminate on the basis of race.

Of course, not everyone on the Court felt the same way as Roberts, which led to an interesting little exchange between Justice Breyer and Justice Scalia on the legacy of the Court’s decision in Brown v. Board of Education:

Justice Stephen Breyer, in a dissent joined by the other liberals on the court, said Roberts’ opinion undermined the promise of integrated schools that the court laid out 53 years ago in its landmark decision in Brown v. Board of Education.

“To invalidate the plans under review is to threaten the promise of Brown,” Breyer said.

While Roberts said the court was being faithful to the Brown decision, Justice John Paul Stevens in a separate dissent called the chief justice’s reliance on Brown to rule against integration “a cruel irony.”

Justice Clarence Thomas, the court’s only black member, wrote a separate opinion endorsing the ruling and taking issue with the dissenters’ view of the Brown case.

“What was wrong in 1954 cannot be right today,” Thomas said. “The plans before us base school assignment decisions on students’ race. Because ‘our Constitution is colorblind, and neither knows nor tolerates classes among citizens,’ such race-based decisionmaking is unconstitutional.”

I think Thomas clearly has the better argument here. The reason that the Court’s decision in Brown was correct is because it was wrong from the Topeka Board of Education to discriminate against students based on their race. A plain reading of the 14th Amendment should have made that clear. Unfortunately, the Court’s opinion, along with decades of previous 14th Amendment case law, muddied the waters as much as it cleared them up because it relied more on social science studies of the detrimental impact of segregated schools on black children than it did on the plain fact of the matter that the 14th Amendment was clearly intended to make the Constitution colorblind.  We’ve been paying for the Court’s mistaken reasoning in that case ever since.

Doug Mataconis
http://www.belowthebeltway.com

Genarlow Wilson Is Still In Jail

Crime and Punishment, Legal, Mandatory Minimum Sentences, Sex

By now, Genarlow Wilson’s story should be familiar to everyone. At 17 he was convicted of having consenual oral sex with his fifteen year old girlfriend and, because of the absurdity of Georgia’s sex offender laws, he was sentenced to ten years in prison.

Earlier this month, the judge in charge of his case reduced Wilson’s conviction to his misdemeanor and ordered his immediate release. Wilson had already spent two years in prison, and that would’ve seemed to have been the end of it, except the Georgia Attorney General filed an appeal.

Yesterday, Wilson learned that he would not be released while that appeal is pending:

Genarlow Wilson, whose 10-year prison sentence for having consensual oral sex with a 15-year-old when he was 17 was voided by a judge earlier this month, is not eligible to be released on bail while the state appeals his sentence, a judge ruled today.

The ruling, which came just days after investors announced they’d post a $1 million bond for Wilson, likely means Wilson will remain in jail for several more months. The Georgia Supreme Court is scheduled to hear his case in October.

The order, issued by Douglas County Superior Court Judge David Emerson, canceled the bond hearing that he originally set for July 5.

In his Wednesday ruling, Emerson cited a Georgia law that prevents trial courts from granting bail to people convicted of certain crimes, including aggravated child molestation, when the original sentence exceeds five years, as is the case with Wilson.

“As the court has no authority to grant an appeal bond in this case, there is no need for an evidentiary hearing on the defendant’s eligibility for a bond,” Emerson wrote in a three-page order.

It would appear that the Judge didn’t do anything wrong here. He simply doesn’t have the authority to release Wilson on appeal because of the type of the crime he was convicted of committing. The fault lies with the Georgia legislature for writing an absurd law, and with a prosecutor who continues to pursue a case that really ought to be dropped by now.

H/T: Brendan Loy

Doug Mataconis
http://www.belowthebeltway.com

Another Police Outrage Caught On YouTube

Police Watch

Go skateboarding in Little Rock, Arkansas and you run into the iron hand of the law:

LITTLE ROCK, Ark. — A police officer who appears to choke a skateboarder and put two others in a headlock in a video posted online has been put on administrative leave while police investigate, officials said.

Hot Springs Mayor Mike Bush said Tuesday that investigators have talked with witnesses who saw the officer, Joey Williams, stop the skateboarders on a downtown city sidewalk last Thursday. Skateboarding is banned in the area.

The video shows Williams apparently choking one of the skateboarders after forcing him to the ground, then later chasing and wrestling two others while holding them in a headlock.

“Unfortunately, the video shows it pretty good,” Bush said

Unfortunately ? Are you suggesting that it would’ve been better if the video didn’t exist, because then you wouldn’t have the inconvenient problem of evidence like this ?

H/T: Brendan Loy

Doug Mataconis
http://www.belowthebeltway.com

Counterpoint: The “Living Constitution” Is The Road To Serfdom

Constitution, Founding Fathers, Point/Counterpoint

In his opening post, our Guest Blogger Derek Hammer states that the United States Constitution is, and should be considered to be, a living document.

In at least one interpretation of that phrase, I agree with him.

As we sit here, less than three months shy of the 220th anniversary of the date that the Philadelphia Convention sent the Constitution to the States for ratification, it is clear that the document itself is alive and that, notwithstanding several decades of bad decisions by the Supreme Court and lower Federal Courts, the core protections of individual liberty that were created in Philadelphia in 1787 remain intact.

However, the debate over a “living Constitution” vs. strict constructionism is far more complicated than that.

Derek’s core argument, which I agree with on many levels is this:

The Constitution is a living document. However, I must stress that a living document does not mean that the government has free reign to do what it wishes! Instead, power must stay consolidated with the people, as was the intent of the Founders, and the people are the only ones that should be able to relinquish their power to the government. The government should not direct the lives of people nor should it abuse the flexibility of the Constitution. Instead, I believe that the Constitution’s flexibility should be considered minor leeway for the Congress instead of a free-ranging usurpation of power from the people. Major changes to the Constitution should not be, and cannot be, overruled by the laws of Congress. Instead, amendments should be made in order to change the Constitution itself.

Also, the Commerce Clause and the Elastic Clause are being abused by the Congress and the federal government. In the 9th and 10th amendments, the powers that are not enumerated to the Congress are reserved to the states and, ultimately, the people. Universal healthcare does not “promote the General Welfare,” it enforces it! Such a law would restrict the freedoms of the people–the very freedoms that are reserved to the people. Congress does not have the authority to do this even under a living Constitution.

This argument is not entirely unlike the argument that legal scholars like Randy Barnett have made in favor of what amounts to a libertarian version of judicial activism. Put a bunch of libertarians on the Supreme Court, give them the 9th and 10th Amendments to work worth, and let hell break loose.

The problem with that argument is that ignores political, and in some sense, legal, reality.

The natural tendency of the state is to expand it’s power.

This is not an original insight on my part, it’s been noted by classical liberal/libertarian thinkers since the Enlightenment. A legal theory that asserts that the founding document of the nation, in this case the U.S. Constitution, is open to interpretation based on contemporary standards, is an open invitation to the expansion of state authority over the individual.

Quite honestly, this isn’t even a matter of academic argument. It’s a matter of what has actually happened. Beginning even with Marbury v. Madison, the case that established the Supreme Court’s authority to declare a law passed by Congress unconstitutional despite the fact that no such authority was granted by the Constitution itself, the process of removing the reality of authority in the United States from what the Constitution actually said had begun. The process continued with cased like Dred Scott and Plessy v. Ferguson and then reached their height in the New Deal era when the Supreme Court, temporarily at least, had the audacity to tell Franklin Roosevelt that he didn’t have the authority to turn the United States into a semi-socialist state. And then, he challenged them, and though he failed, they caved and the result is history.

I could go on, but the point is this. The history of the idea of the “Living Constitution” is a history of the expansion of the power of the state and the shrinking of individual liberty and autonomy.

And, to paraphrase William F. Buckley, Jr., I’d rather be governed by the words written 220 years ago by a group of American Patriots than by the whims of several hundred Federal Judges.

Doug Mataconis
http://www.belowthebeltway.com
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