3 ms·

These arguments take a form which implies that each right operates in a vacuum. But, of course, if we were to allow any right without exception, then we would

These arguments take a form which implies that each right operates in a vacuum. But, of course, if we were to allow any right without exception, then we would soon find that we have no rights. Not only would the limitless interpretation of one right eventually decimate other rights but, apart from that, it would also undermine society's solvency; hence its ability to enforce even the expanded right. Rights, as ideas, have no utility. They must be layered onto the substrate of a functioning society. Hence, there has always been work towards achieving balance, as every right must be circumscribed to some degree. This is why we have courts, reasonableness standards, etc. So, sure, we could interpret these as "contradictions", but that becomes a meaningless characterization in any practical sense.

mountainb 5y ago
They don't operate within a vacuum: the historical context matters. Over the last 400-500 years, the Anglo-American elite mostly decided to support the free exchange of ideas relating to politics and religion to support vigorous debate and an open public sphere. That's the primary value that the first amendment is supposed to protect. It's also supposed to act as a sort of political safety valve that prevents civil war and that tends to privilege parliamentary procedure over arbitrary executive/royal rule. The intention was not to enshrine a right to smut in the constitution, nor was it to legalize criminal harassment, threats, or defamation. That's something that was read into it by judicial activism.
- unclebucknasty 5y ago
  >The intention was not to enshrine a right to smut in the constitution...That's something that was read into it by judicial activism The phrase "judicial activism" has a bit of a pejorative tone to it, but I'm not sure that we can identify a single right enshrined in the Constitution that hasn't been so challenged or invoked in ways not initially "intended". There's no practical way to avoid that, and I don't think we'd want to in any case. But, this was anticipated and we have a system for adjudicating such questions. So, I don't take exception to the idea that these things can be considered, tested and decided. In fact, I take exception to those who pretend that's not the case or that we have and must blindly enforce 1A and other rights.

mountainb 5y ago

They don't operate within a vacuum: the historical context matters. Over the last 400-500 years, the Anglo-American elite mostly decided to support the free exchange of ideas relating to politics and religion to support vigorous debate and an open public sphere. That's the primary value that the first amendment is supposed to protect. It's also supposed to act as a sort of political safety valve that prevents civil war and that tends to privilege parliamentary procedure over arbitrary executive/royal rule. The intention was not to enshrine a right to smut in the constitution, nor was it to legalize criminal harassment, threats, or defamation. That's something that was read into it by judicial activism.

unclebucknasty 5y ago
>The intention was not to enshrine a right to smut in the constitution...That's something that was read into it by judicial activism The phrase "judicial activism" has a bit of a pejorative tone to it, but I'm not sure that we can identify a single right enshrined in the Constitution that hasn't been so challenged or invoked in ways not initially "intended". There's no practical way to avoid that, and I don't think we'd want to in any case. But, this was anticipated and we have a system for adjudicating such questions. So, I don't take exception to the idea that these things can be considered, tested and decided. In fact, I take exception to those who pretend that's not the case or that we have and must blindly enforce 1A and other rights.