So often we get wrapped up in seeking foundation for an argument in what the law allows. In this case, Ginsberg argues that the new McCain-Feingold campaign finance law should be administered equally when applying it to political speech. The law - briefly - allows for "527 groups" to operate in very specific ways outside the purview of political parties and laws applicable to them. The author essentially says, "You should be going after the other guy too!"
Folks, I have a different message. To the members of Congress who passed the legislation, to President Bush who signed it into law, to the members of the Supreme Court who gave it their blessing, I say, "you cannot do this." To get into an argument about what the law allows misses the point. The law in this case is illegal. What?
There is an authority to which we all have to turn when it comes to determining the degree to which government intrudes in our lives. I'm referring to the Constitution. If you don't know the history of our country and the origins of this document that provides the codified foundation for our Republic, you probably don't know that it was never intended to instruct the citizenry on that which we are allowed to do. The founders of our country recognized early on that, in order to organize the various states into a cohesive nation, a set of rules had to be established. They recognized though that any powers granted to the new government would have to be at the detriment to the liberty of the people. They were so fearful that government would intrude on our liberties that, before they were finished writing the Constitution, they included a Bill of Rights.
Unlike what some will tell you, the Bill of Rights was never intended to be construed as a list of those rights that the government, out of magnanimity, was going to grant to the people. The founders wanted to ensure that the readers of the document and those that would derive from it the basis for future laws would understand that there are certain liberties that are beyond the government's control - absolutely. That's why, when you read the amendments to the Constitution, you come upon such phrases as, "Congress shall make no law," and "the right of the people," and "without the consent of the Owner," and most importantly, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Constitution is our gift to government. We are not subservient to government.
I remember many years ago there was a group (a majority as it turned out) of Supreme Court justices that decided to make abortion legal. I'll save my opinion on that subject for another day. But I found it fascinating that the learned jurists had to justify what they considered to be one of our freedoms by locating it in the specific language of the Constitution or its amendments. Before you look, let me save you the time. There is no "right to abort your child" in the Bill of Rights. So the justices "found" the right to abort a fetus in the Constitutional right to privacy. Still a problem. There is no right to privacy in the Constitution. So the justices "found" that right in the Due Process Clause of the 14th amendment which says, "No State shall...deprive any person of life, liberty, or property, without due process of law." Huh? That's right. There is a right to abortion to be found in the right to privacy to be found in the Due Process Clause of the 14th amendment to the Constitution. This epitomizes the contortions we now have to go through to determine what our rights are. We have come to the point where we are twisting ourselves in knots. This is what privacy means - in bizarro world:
The right of privacy has evolved to protect the freedom of individuals to choose whether or not to perform certain acts or subject themselves to certain experiences. This personal autonomy has grown into a 'liberty' protected by the due process clause of the 14th amendment. However, this liberty is narrowly defined, and generally only protects privacy of family, marriage, motherhood, procreation, and child rearing. Further extensions of this right of privacy have been attempted under the 1st, 4th, and 5th Amendments to the U.S. Constitution, however a general right to personal autonomy has yet to take hold beyond limited circumstances.
It makes my head hurt. The right to privacy has grown into a liberty. Boy, am I thankful for a kind and caring government that has seen fit to grant me the right to my privacy. Of course our government doesn't want to give up too much control. Read that last clause. "...however a general right to personal autonomy has yet to take hold beyond limited circumstances."
I keep reading the words of the authors of the Constitution and I swear I cannot find where this was their intention. God help us.