inkbluesky

Supreme Court Justice Antonin Scalia is what conservatives and some libertarians call a constitutional originalist. Originalism is more an axiom, a concept that exists mostly in the fog of ideological agendas then a legitimate philosophy of government. There is something called original intent, but that intent can can only be understood in historical context. Certainly conservatives claim this is just what they do. That is the ether talking. They generally have a POV, then backtrack down the rabbit hole to find a way to justify that POV. I tend to take the Constitution is a living document approach. It was written by guys that did not have telephones, nuclear war heads, planes that can cross the Atlantic or the internet – whenever we consider these things we should consider them with as much historical Constitutional context as possible, but since these modern innovations in technology were not explicitly mentioned – each possessing their own inherent issues per the 1st Amendment among others – does the 1st Amendment protect someone’s right to talk openly about secret national defense technology. Strict word for word interpretations of the Constitution are only going to take us part of the way in creating laws pertaining to those technologies and what if any limitations there should be ( adult content like Henry Miller novels on the net for example or using imminent domain to seize land for an airport). One of the ways we know large O originalists are a little batty is the ceaseless hypocrisy about state’s right if nothing else. This book approaches the 1st Amendment component of Scalia’s brand of orginalism from a scholarly legal angle and what originalist consider the limits of the first amendment , Unoriginal Misunderstanding: Press Freedom in Early America and Interpretation of the First Amendment

When the First Amendment was adopted, did Americans understand it would protect against the government punishing people for writings deemed dangerous or harmful?  Despite the broad guarantee of press freedom, several legal historians have expressed doubt that the “original understanding” was to protect people against being prosecuted for what they published.  The primary purpose of this monograph is to review the extensive evidence, overlooked in earlier scholarship, that Americans in the early republic had very libertarian views of press freedom under the Bill of Rights.

This question is not just academic.  Supreme Court Justice Antonin Scalia has attacked the decision in New York Times v. Sullivan, a leading case protecting the press, on grounds that the case goes beyond what Scalia deems to be the “original meaning” of the First Amendment. This monograph presents substantial historical evidence contrary to Scalia’s view.

[  ]…The most important aspect of Shear’s essay, though, is the assault it mounts against judicial appeals to the original intentions of the founders. In his conclusion, Shear traces some of the ways in which he feels this standard has been abused in recent opinions handed down by the Court. If nothing else, Shear’s findings dramatize the difficulties involved in making generalizations about the framers’ intentions. It is not just that members of the founding generation entertained widely different views about the freedom of the press. The same individual could adopt very different notions at different times in his career depending on the circumstances he was confronting. Shear’s conclusion is designed to discourage future, one-sided appropriations from a complex past, which he feels was more liberal on balance than either Levy or certain members of the current Court credit it with having been.

And a related post here, Taking The Tenth Amendment Seriously

What is this [Commerce] power? from (Gibbons v. Ogden)

It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.

on a limb

Why a Ban on Flavored Cigarettes and Outdoor Smoking Will Backfire – By Tony Newman

While I support many restrictions on public smoking, such as at restaurants and workplaces, and I appreciate public education campaigns and efforts aimed at discouraging young people from smoking, I believe the outdoor smoking ban and prohibition of cloves and possibly menthols will lead to harmful and unintended consequences. All we have to do is look at the criminalization of other drugs, such as marijuana, to see some of the potential pitfalls and tragedies.

A recent William Saletan column also mentions the creeping criminalization of smoking and the sometimes misguided attempts to change food consumption habits, Then They Came for the Fresca – The growing ambitions of the food police

Wow. This isn’t socialism. It’s sheer paternalism. It applies even if you cover every cent of your medical expenses. You buy and drink soda because you want the “short-term gratification.” Later, you regret this purchase because of its “long-term harm.” This, according to the authors, is a market failure that justifies taxation to alter your behavior, totally apart from its impact on public health costs.

This is what worries me about the crackdown on death sticks and edible crap. There’s no end to its ambitions. We’d better start applying some brakes.

I’m not in agreement with some of the specifics of Saletan’s examples – considering our current federal deficit a few pennies of tax on carbonated sugar water is hardly going to bring down this ol Democratic Republic. On the other hand probably not a good idea to make cigarettes and soda into the next cocaine. I do not know what the tipping point is, but eventually smuggling and illegal sales become lucrative – remember Goodfellas - New York cigarette taxes made smuggling cigarettes from North Carolina a nice little enterprise for organized crime. So called sin taxes can have the effect of a de facto Prohibition-lite. After a while the tax revenues gets eaten up in policing, prosecution and imprisonment.