Speech Restriction Aborted

by Mike on June 25, 2007

in Judicial Watch

Dog bit man at the Supreme Court today when the Court actually applied the First Amendment, holding that restrictions preventing a pro-life group from running issue ads prior to an election are unconstitutional, even if the ad in question references a candidate. The ruling was obviously 5-4, with the five justices who have actually read the Constitution applying the document’s First Amendment while the other four were lost somewhere in the shadow of a penumbra. Thanks to the arrival of Justice Alito, it now looks like the Constitution is making a comeback.

There was a division in the majority that deserves mention however because it highlights how Justices can have good faith disagreements while honestly applying the Constitution in cases where important values of Constitutional interpretation clash. In striking down the restriction in question, Justices Thomas, Scalia, and Kennedy all voted to overturn the provision of McCain-Feingold barring ads prior to an election. Chief Justice Roberts and Justice Alito however, limited their holding to the statute as applied to this particular type of case. Although these different approaches did not affect the case’s holding, both advanced principles necessary to Constitutional governance.

In today’s ruling, Justices Thomas, Scalia, and Kennedy upheld the principle that the courts cannot apply statutes contrary to the U.S. Constitution. The statute in question, McCain-Feingold, prohibits issue and political advertisements prior to an election despite the clear Constitutional requirement that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, . . . (emphasis added)

The provision in question directly violated the Constitution because it was passed by Congress (McCain-Feingold) and abridged the right to freedom of speech by restricting said speech during campaign season. By straightforwardly applying the Constitution as written, Scalia, Thomas, and Kennedy ensured that the document will continue to have meaning. Since the Constitution is the document which protects our God-given liberties, ensuring its meaning is a good thing.

Another important principle in Constitutional law is that the court must limit itself to the case or controversy before it. For decades now, liberal judicial activists have used their power to issue rulings that greatly exceeded the scope of the cases before them. Since they couldn’t advance their socialist agenda via the ballot box, this was the next best thing. Unfortunately for our nation, the Constitution grew more and more meaningless with every ruling.

Today, Roberts and Alito signaled their intent to reverse this activism by limiting their ruling today to striking down the restriction as applied. If the Court maintains this new commitment to restraint, it will be far more difficult to use the court as another policy-making branch and there will be fewer invented rights, which upon closer inspection are often not rights at all. Just ask the unborn.

Although both wings of the Constitutionalist majority restored two important principles today, the Scalia-Thomas-Kennedy approach was more appropriate. The restriction in question only came about because of an unconstitutional statutory provision. It was that provision that those who would abridge free speech (John McCain) rely upon. Striking down that provision entirely would have been appropriate because it would have advanced both the principle that the Constitution is supreme and that the court must limit itself to cases and controversies before it.

I know this seems like hair splitting, but the distinction between the good-faith approaches is important. President Bush did his country a tremendous service by nominating John Roberts and Samuel Alito. It is clear that both are committed to supporting the Constitution. However, their approach to doing so thus far tell me that neither Roberts nor Alito are in the same league as Scalia and Thomas. Thankfully though, they are not in the same universe as Breyer, Souter, Stevens and Ruth Biddy. In the end, that is what is really important.

{ 2 comments… read them below or add one }

Sal June 25, 2007 at 3:12 pm

Still, I would be estatic if we found a court made up of a mixture of the Alito/Roberts type and the Thomas,Scalia type. Roberts may have a point that the best way to reverse the liberal onslaught in the court is a series of small, targeted rulings and restoring that approach to the court.


Mike June 25, 2007 at 3:16 pm

Welcome back!

I agree. This is the type of good faith debate that should exist on the court. Both perspectives are important. In this case, I think striking down the provision entirely would have served both ends.

Although the Thomas/Scalia approach is superior, narrow rulings are important too. It seems that Roberts/Alito are definitely nowhere near penumbra land.


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