Is it Moral?
We all have a moral code. Some people have a moral code that is more restrictive than yours. Some people have a moral code less restrictive than yours.
Occasionally, a moral code is imposed by outside authorities. Such a moral code is unlikely to be “your” moral code. You might agree with all or some of that enforced moral code.
An example of an outside moral code is “Thou shalt not kill.” The original Hebrew was “Thou shalt not murder.”
If you are reading this, it is highly likely that your moral code allows you to violate the first rule, “Thou shalt not kill.” If you carry, if you are willing to use lethal force, you have already decided to violate that rule.
At the same time, you should still be within the rule of “Thou shalt not murder.”
Humans are not born with a moral code. We are taught a moral code by our parents and our community.
A big problem for many Muslims is that their moral code is incompatible with our moral code. We can look at the rape gangs in the UK and question, “Why would they rape children?”. It is because, to their moral code, they have done no wrong.
There are those among us whose moral code would revolt you. Their moral code isn’t thou shalt not commit murder. It isn’t thou shall not kill. Instead, it is closer to “are you willing to do the time? Is it worth it to you to kill this person?”
We joke about feeding pedo’s into the wood chipper, feet first, with tourniquets in place. The reason we make that joke is because there are many among us that have evaluated the cost and are willing to do the time.
To quote Chicago, “It was murder, but it wasn’t a crime.”
In a series I was watching, the cops show up at a dirt poor family’s home. It is obvious that they have been eating meat from animals harvested from the forest. The cops know, they cops aren’t going to do anything about it. Who’s moral code is correct?
Is it legal?
Harvey Silverglate wrote Three Felonies A Day, How the Feds Target the Innocent. The book boils down to the fact that in the course of going about your day, most people will commit 3 or more felonies.
There is an imaginary line a few miles south of me. If I am standing, with my normal gear, on the north side of that imaginary line, no issues. If I step across that line, I’m committing felonies.
One of the things that is often said, which I have not verified, is that everything Hitler did to the Jews was legal, under German law, at the time.
In some cultures, it is legal to beat your wife. It is legal to beat your children. It is legal to do many things that are illegal here.
In the UK, it is illegal to say bad things about protected classes of people. In the US, there are people who want it to be illegal to say things that hurt their feelings.
What is legal and what is not legal is determined by the rules written in “The Book.” In the US, at the federal level, we need to have both houses agree to a bill and then have the president sign the bill into law.
In addition, the congress can pass a bill and have it signed into law telling some agency to create “regulations” with the force of law.
Is it Constitutional
To understand if something is Constitutional, we have to look at the regulation and determine if the regulation implicates the plain text of the Constitution. If it does, then we have to look to this Nation’s history of regulations on this type of regulation.
For most of the Constitution, we have historical jurisprudence telling us what each word and phrase means. This is so the inferior courts and the legislator can “get it right”. They don’t, but the Supreme Court does try.
The meaning of the words of the Constitution are locked in time. They mean today what they meant when the language was added to the Constitution.
For instance, the term “well regulated”, from the Second Amendment, does NOT mean “many regulations” or even “with regulations setting forth the boundaries of the right”. In 1791, “well regulated” means functioning well.
The phrase we are interested in, today, is Congress shall make no law … abridging the freedom of speech
The full quote is above, I’ve expanded the clause to focus on the concept of “Free Speech”.
From the plain text, it is obvious that it is a limit on Congress’s authority to create regulations abridging speech. Any law that Congress passes that restricts speech implicates the plain text of the First Amendment.
Once we have determined that there is a Constitutional issue, we need to look at this Nation’s history of abridging free speech, at the time of the founding! 1791!
If you have a “hate speech” law that came into existence in 1950, that is not part of this Nation’s history of abridging free speech. The latest the law can exist and still be part of the original understanding of the law is around 1820.
Because this issue has been asked and answered by the Supreme Court, we don’t need to look for those laws. What the Supreme Court found was that there is a history in this Nation of abridging free speech.
What are those abridgments?
They fall into categories based on how much abridgment there is into the “core” right.
As an example, there are regulations limiting the use of the US Postal Service to distribute pornographic materials.
Does this intrude into “freedom of speech?” YES! It does.
How close to the core right does it cut? It is not political speech, for the most part, nor is it “educational” speech on the other. It does not seem to intrude into the core right.
On the other hand, if the State had anything to do with censoring conservative speech on Twitter, Facebook or any social network, that does cut directly into the core rights protected by the First Amendment.
Once the category is determined, the next step is to decide the “level of scrutiny” to apply.
If the abridgment cuts to the core protected right, then strict scrutiny is applied. Less than but still significant, then intermediate scrutiny applies.
There is another below that which I do not remember.
Using levels of scrutiny is giving our rights away. We should never agree to “levels of scrutiny” as it allows the State and rogue inferior courts to decide on the outcome by choosing levels.
In Bruen, the Supreme Court found that the inferior courts were intentionally misusing levels of scrutiny. As such, they said that levels of scrutiny were no longer allowed for Second Amendment challenges.
Once a court has determined that it applies, strict scrutiny starts from a presumption of unconstitutionality, shifting the burden of persuasion to the government, which must then produce evidence sufficient to show that its actions were constitutional. To that end, the government must show that its actions were “narrowly tailored” to further a “compelling government interest,” and that they were the “least restrictive means” to further that interest.
I highlight the phrase “shifting the burden” because that is an exact match to what was said in Bruen.
In Constitutional Challenges, once the plain text is implicated and strict scrutiny is invoked, the government must prove three distinctly different things:
- That there is a compelling government interest in passing the regulation
- That the solution proposed was the least restrictive possible
- That the restriction was narrowly tailored to meet the compelling interest.
The government is not supposed to be able to just say they have a compelling reason, they need to prove it. Stopping murder? That is compelling. Stopping espionage is compelling. Stopping people from voicing their opinion is not compelling.
Having identified the compelling interest, the government must then show that they are using the least restrictive method to achieve the goal.
Increasing the penalty for murder? That is not restrictive. Banning all cell/mobile phones in businesses? That is not least restrictive. Banning people that might say something offensive is not least restrictive. Forcing a company to divest itself of foreign advisory control? That sounds like it might not be very restrictive.
Finally, was the law narrowly tailored to accomplish the goals?
Something can be moral and illegal. Something can be legal and immoral. Being Constitutional makes it “legal” but does not make it moral. Remember that it was once legal and Constitutional to own slaves in this country. It was never moral. We fought a war and amended our Constitution to make slavery Unconstitutional and illegal. It stayed immoral.
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