From: cramer@optilink.UUCP (Clayton Cramer)
Newsgroups: misc.legal
Subject: Re: Original Intent
Date: 15 Sep 92 16:29:37 GMT
Organization: Optilink Corporation, Petaluma, CA

In article <1992Sep11.145343.5876@eff.org>, mnemonic@eff.org (Mike Godwin) writes:
> In article <12238@optilink.UUCP> cramer@optilink.UUCP (Clayton Cramer) writes:
> >It is definitely more complicated than determining original intent.
> >But your extrapolation of freedom of discourse from free speech
> >and free press is far different from turning the Constitution on
> >its head, as liberals are fond of doing.
> 
> Could you give some examples of "liberal" jurisprudence that are *not* 
> extrapolations of the sort I mentioned (and of which you approve, I take
> it)? Examples that are clearly "turning the Constitution on its head"?
> The distinction you draw here would be clearer if you gave some
> specifics.

              Our basic  freedoms  may  be  curtailed  if  sufficient
              reason exists  therefor.   Only in a very limited sense
              is a  person free  to do  as he  pleases in  our modern
              American society.[Burton v. Sills, 99 N.J.Super 459,
              462 (1968)]

Sort of blows out the notion that a Bill of Rights represents some
basic set of rights that the government may not infringe upon, doesn't
it?  By the way, Burton v. Sills isn't just another obscure case -- 
I can point to a number of state supreme court decisions that cited
Burton v. Sills with great approval.

              In the first place, a constitution is not a lifeless or
              static  instrument,  the  interpretation  of  which  is
              confined to  the conditions  and outlook  prevailing at
              the time  of its  adoption; rather, a constitution is a
              flexible,  vital,   living  document,   which  must  be
              interpreted in light of changing conditions of society.
              16 Am.Jur.2d, Constitutional Law - 96 (1979).[State
              v. McAdams, 714 P.2d 1236, 1237 (Wyo. 1986]

The Wyoming Supreme Court argued that the mere fact that the Wyoming
Constitution granted a right to bear arms "in defense of themselves
and the state," and that at the time that Constitution was adopted,
there was no law that prohibited concealed carry, meant that the
Legislature could go ahead and prohibit concealed carry because of
"changing conditions of society."  It is precisely to prevent this
sort of "flexible, vital, living document" that Constitutions were
written -- to prevent the passions of the moment from overwhelming
the transcendental essential rights of the individual.

By the way, before anyone gets too insistent that the authority to
prohibit concealed carry is implied in the police powers of the 
state -- which position has been taken by a lot of courts -- 
from the 1820s onward, state constitution RKBA provisions have been 
explicitly amended to grant the authority to the state to regulate or 
prohibit concealed carry.

> >I happen to think that child pornography laws are stupid (for
> >the same reason drug laws are stupid), and not the most effective
> >solution to the problem of child molestation.  But I know that they
> >are not what was intended to be protected by the First Amendment.
> 
> What is your evidence for supposing that the Framers meant to exempt
> pornography (or child pornography in particular, if you insist) from 
> the First Amendment?

Let me rephrase my position after having a chance to think about it
in more detail.  The First Amendment contains what appears to be 
very clear-cut language prohibiting laws that abridge freedom of 
the press.  But it's not at all clear that this meant there was no
legal punishment for published materials.  Buel's writings on the
development of the libertarian notion of freedom of the press 
points out that at the time of the Bill of Rights being adopted,
the principal concern was prior restraint -- that the government,
rather than punishing abuses of press freedom, would attempt to
prevent those abuses by requiring government clearance of materials
to be printed, or government licensing of printers.

Understood in this light, it makes considerable sense that the
First Amendment did not immediately invalidate libel laws.  It
also explains how the Sedition Act could be passed by a Congress
that included many of the same people that passed the Bill of
Rights.  (Though to be fair, the First Congress included a lot
of members who saw the whole Bill of Rights as a sop to the
Antifederalists, and not all that important.  See Letter of Fisher 
Ames to Thomas Dwight, June 11, 1789, in William B. Allen, ed., 
_Works of Fisher Ames_, (Liberty Classics, Indianapolis: 1983), 1:642.)

It also explains why ONLY the First Amendment of the Bill of Rights
limits the authority of Congress.  The expectation of the time was
that the executive branch would remain a small operation, and 
leaving the judiciary out of the restricted area would still allow
laws that prohibited libel, slander, blasphemy (such as New York's
law, struck down in the early 19th century), and obscenity.  I
find it interesting that the amendment introduced by Madison was
not so limited:

              The people  shall not  be deprived or abridged of their
              rights  to   speak,  to  write,  or  to  publish  their
              sentiments...[Charlen Bangs Bickford & Helen E. Veit, 
              ed., _Documentary History of the First Federal Congress 
              1789-91_, (Baltimore, Johns Hopkins University Press: 
              1986), 4:10]

Also, a great many laws that were made impossible at the federal
level had state equivalents that were considered completely proper:
state establishments of religion, for example, and a variety of
forms of business regulation, such as was upheld in Barron v.
Baltimore (1833).  It would be interesting to know what state
obscenity laws were on the books in 1789.  Original intent becomes
a clumsy tool for analysis at this point, however, since the 14th
Amendment has incorporated the First Amendment against the states.
Should the original intent at the federal level take precedence,
or original intent at the state level at that time take precedence?

> (It should be noted that the federal child-porn statutes, at least, 
> do not ban all depictions of sexual activity involving children--they ban
> only those that *use* children engaging in sexually explicit conduct
> for the purpose of creating visual depictions of such conduct.)

That would show remarkable intelligence on the part of our Congress.
I've read differing accounts of exactly how the statute is written,
but I will assume that the statute is as you say, and marvel at the
intelligence of our elected representatives.  I'm curious to know
if any cases have come to the courts in which virtual child porno-
graphy was the issue.

> Mike Godwin,    |"The meeting of two personalities is like the contact 
-- 
Clayton E. Cramer {uunet,pyramid}!optilink!cramer  My opinions, all mine!
There can be no peace as long as AB 2601 lives.
Newsgroups: misc.legal,alt.sex.bondage