Thursday, March 14, 2013

The Education of the Junior Senator from Texas

Today, at a hearing of the Senate Judiciary Committee on guns, Ted Cruz, the junior Senator from Texas, posed this question to Madame Chairman Senior Senator from California Dianne Feinstein:

"The question that I would pose to the senior Senator from California is, would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment, namely, would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights? Likewise, would she think that the Fourth Amendment's protection against searches and seizures could properly apply only to the following specified individuals and not to the individuals that Congress has deemed outside the protection of the Bill of Rights?"

DiFi took him to task on this question, but let me make my own response here.

I would hope that the junior Senator from Texas would be aware that not only is it Constitutional for the Congress to declare certain restrictions on the freedoms guaranteed under the Constitution, it has done so many times since the founding of our Republic, and those restrictions have been upheld by Supreme Courts for over two hundred years.

You mentioned the First Amendment, which among other rights guarantees the freedom of speech. As you should know, Senator, there are laws that do limit that freedom. You do not have freedom of speech if you are inciting a panic in which people might be harmed. You do not have freedom of speech if you are encouraging others to commit crimes. You do not have freedom of speech if you are publishing pornographic images of children. You do not have freedom of speech if using an amplifier on an suburban cul-de-sac at 3:00am. 

The First Amendment also guarantees freedom of the press. As you should know, Senator, there are laws that limit that freedom. The press is not free to defame a man's character by telling lies about him. The press is not free to encourage others to commit crimes. The press is not free to slander a person in hopes of destroying their reputation or enterprise. The press is not free to distribute pornography to minors.

The First Amendment guarantees the right to peaceably assemble. As you should know, Senator, there are laws that limit that freedom. No matter how peaceable you are, you do not have the right to assemble a large crowd on the Roosevelt Bridge at rush hour. You still need a permit to hold a parade, no matter how quiet it may be. You may not freely assemble in your local police station, or on any private property, or inside the fence at 1600 Pennsylvania Avenue.

You mentioned the Fourth Amendment, which guarantees the right to be secure in your person and your home. As you should know, Senator, there are laws that limit that freedom. A judge can issue a warrant and your home and person can be searched against your will if you are reasonably thought to have committed a crime. A police officer at your door can kick it open and enter if they hear someone inside crying to help. They can pull your car over and search it if they have probable cause to do so.

So you see, Senator, every right that you mentioned is already restricted by law. If you paid attention, you would see the pattern here. We, as citizens, are granted individual rights and freedoms. But always, we have to guard against those freedoms being abused to the point that they infringe of the freedoms of others, place others in potential harm, or place the public safety at risk. When those situations arise, this Congress has the power, the right, the Constitutional authority, and the responsibility to act - to protect our citizens from the ways in which others may abuse their rights. If one may not shout "Fire" in a crowded theater, is it not obvious that one should not fire an assault rife there?

So, to answer your question, Senator, if I would place restrictions on other Constitutional rights, I reply to you, sir, that we already have done so, and we did it for damned good reasons. And if you were as much the Constitutional scholar as you seem to think you are, you would have already known that.

Now, are there any other areas of Constitutional law in which the junior Senator from Texas requires education?


  1. Senator from Texas - isn't that a euphemism for something?

  2. So, tell me, how is it impinging on another's freedom for somebody to buy a word processor? Or a bullhorn? Or a sign?

    No. Owning those things are not illegal: it is how they are USED that are restricted.

    So, too, are the implements of the 2nd Amendment. You can own firearms; but using them in a way that puts others in danger is and should be restricted. But mere ownership? That's as crazy stupid as restricting ownership of a keyboard and an internet connection (or requiring registration for them) because some crazy people use them to do crazy things.

  3. First, Richard, you're not getting the point. Cruz asked if DiFi would call for restrictions on other rights, and I was just pointing out that we do indeed have legal restrictions on other Constitutional rights. Senator Cruz was apparently unaware of that fact.

    But to answer your hyperbole, I will say this. If I use a bullhorn to wake people up in the middle of the night, they will call the police, who will come a stop me from disturbing the peace, and those people will go back to sleep.

    If I use my word-processor to create a book of pornography and send it to children, I will be arrested and those kids will get counseling and go on to live normal lives.

    If I use an AR-15 to kill 25 people in an elementary school, those people are dead.

    I do not think it's out of the question to hold weapons to a higher standard of ownership, given that the stakes on their misuse is also much, much higher.