From: Tim May <tcmay@got.net>
Date: Sat, 20 Dec 1997 04:01:08 +0800
To: "Bruce Balden" <honig@otc.net>
Subject: Re: Freedom Forum report on the State of the First Amendment
In-Reply-To: <01bd0cb3$3b343b40$69737018@eudoxus.bc.rogers.wave.ca>
Message-ID: <v03102802b0c06d46682c@[207.167.93.63]>
MIME-Version: 1.0
Content-Type: text/plain



At 12:20 PM -0700 12/19/97, Bruce Balden wrote:
>>The first amendment is about what government can't do to you, not what your
>>neighbor can or can't do.
>>
>>
>And whether the constitution so narrowly construed limits the action of
>local councils. It would be extremely convenient if each fo the 50 states
>adopted by custom each of the federal amendements mutatis mutandis.

This is an interesting debate. But for those who claim, as we often see,
that the Constitution talks about what _Congress_ may do, and not about
what Virginia may do, or what Skokie may do, or what the Albemarle Country
Board of Supervisors may do, this is simply not true.

For example, "Maybe Congress shall make no law about speech, but Vermont
can tell you to shut up if they want to. And Idaho can force you to speak
in German. And the City of Baltimore can ban the Koran if they want to."

Nope.

I know of several ways of looking at this issue:

* States admitted to the Union have historically had to accept the U.S.
Constitution. In many cases, their own constitutions are nearly identical
to the U.S.C., or even predated the U.S.C. This binds the states to enforce
the Constitution and apply it to their own states.

* As a "guiding document," the spirit of the U.S.C. is what guides even
local laws. So even if the specific language only talks about Congress, the
intent is taken to me any and all government actions, Executive, Judicial,
state, local, etc.

* Some say that the 14th Amendment clarified the issue of whether the
States could have laws which were at odds with the Constitution. (Ownership
of slaves being the relevant case then.)

There's much scholarship on this issue, of course. I don't claim to follow
it all closely, but I'm highly dubious of the simplistic claims that
"Congress shall make no law" only applies to the U.S. Congress.

(With speech, my view is the common one, even for lawyers. Why the Second
Amendment is not treated the same way is a mystery to me. And Justice
Clarence Thomas has hinted that a Supreme Court review of a relevant Second
Amendment case may well result in exactly this ruling, that states and
localities may not infringe on basic Second Amendment rights.)


--Tim May

The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."