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Friday, July 15, 2005

What Hath the D.C. Circuit Court Wrought in Shays v FEC? A Beast Without a Tether?

I haven't had time yet to go through the D.C. Circuit's decision today, but others have, notably Skeptic'seye's Allison Hayward, a former FEC staffer. She's going through it and filing updates as more becomes clear to her. Go here for her analysis. I'll post additional links as they develop.
Well, here's my initial assessment. I had to track down a musty quote from one of the Puritan divines before I could compose this observation, which is two-fold:

First, what we are seeing with the Kotar-Kotelly ruling at the District Court level being upheld by the Appeals Court is the application by the federal judiciary of the basic, if yet unstated, claim underlying the Supreme Court's 2003 decision declaring the Bipartisan Campaign Finance Reform Act to be constitutional - Congress can pass laws regulating First Amendment rights and the federal courts will uphold those laws.

Of course, Congress has always been able to pass some laws respecting the exercise of First Amendment rights. But BCRA goes beyond prudent exercising a right to defining the core scope of that right. This is a fundamental departure from any recognizable jurisprudence of limited government and moves Congress towards the assertion of an unprecedented degree of supremacy.

Let it be noted that this claim of supremacy over and against any individual's right is exactly the same claim made by Parliament in the years leading up to the American Revolution. Rev. Samuel Seabury gave voice to this Loyalist view of Parliamentary supremacy in his "Letters of a Westchester Farmer" in 1774 when he stated that the liberties of individual citizens utterly depended upon Parliament. He dismissed as "Whiggish nonsense" the idea that individual rights have an independent authority that supercedes any ruler or state.

Now that the Appeals Court has upheld Kotar-Kotelly and told the FEC to enforce BCRA exactly as Congress intended, the content of our First Amendment rights are subject to regulation by Congress. The First Amendment's text has been effectively rewritten: "Congress shall make whatever law it pleases respecting the establishment of religion, or prohibiting the free eercise thereof, of of abridging the freedom of speech, or of the press, of the the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Second, I am reminded of a book that John Adams described as nearly as influential in the Revolutionary period as Paine's "Common Sense." It was titled "Vindiciae Contra Tyrannos" and was published originally in 1579 in Amsterdam, then in several successive editions that made their way across the Atlantic to the colonies. We hear little or nothing of Vindiciae today in our history books or other public documents, probably because it reflected the rigorously anti-absolutist views of its Dutch Calvinist authors, as opposed to Paine's more fashionable Deism.

In any case, the basic point of Vindiciae was that authority is granted to the state from outside itself (i.e. from God for the authors, from the people who contract for Lockians, etc.). That means individuals possess rights independently of the state. The contemporary application should be clear - Congress is presuming an illegitmate authority to define rights recognized (not granted!) by the Constitution.

The present battle over the FEC and regulation of political speech on the Internet is not merely one part of the larger conflict over BCRA, it is part and parcel of the long war between freedom and absolutism.

Here is where that musty old quote comes in. It is from John Cotton's "An Exposition Upon the Thirteenth Chapter of the Revelations." There Cotton observed that the state, because it is made up of men afflicted by Original Sin, as well as any other sector or institution of society, will always seek to expand it's power and perogatives and thus must be carefully and specifically limited. (And continually watched, I might add, as a journalist!).

"If you tether a beast at night, he knows the length of his tether before morning," said Cotton.

In other words, Congress is simply using BCRA to stretch its tether. If indeed a tether exists any longer.

Hat Tip to R.J. Rushdoony's "This Independent Republic" for the refresher on the Puritan roots of the American revolution. Don't worry - Being a Southerner of Scots descent, I know there were other roots that were equally or more important. Still, let's not forget there was a time when NewEnglanders supplied much of the fervor, and of the blood, to keep the Revolution alive. We should not forget the stuff of which that generation was made.

As usual, The Captain dives into the research and comes up with extremely important facts. In this case, he goes to the appointing presidents of the judges involved in the original District Court and today's Appeals Court decisions, as well as the congressional backers of the case. Guess what? The people responsible for perpetuating this assault on the First Amendment and Freedom of Speech are all liberals.

And don't miss the facts The Captain found about today's other significant federal court decision:

"So we have a lawsuit to regulate the internet brought by a Democratic representative who is as liberal as it's possible to be, and by a Republican representative who is the most liberal Republican in either body of the Congress, decided by a liberal Democratic judge, and now affirmed by two liberal Democratic appellate-court judges (with a conservative Republican dissenting).
"So now we know who is trying to screw us. But what about who is trying to save us?
"The other
important D.C. Circuit decision announced today, allowing military tribunals for terrorists at Gitmo to proceed, was unanimous: Judge Arthur Raymond Randolph was appointed by George Herbert Walker Bush in 1990; Judge Stephen Fain Williams was appointed by Ronald Reagan in 1986; and Judge John G. Roberts, jr was appointed by W in 2003.
"I hope that answers the question of 'who's your daddy.'"

Does for me, folks.