April 2, 2014

Number of times Justice Breyer uses the expression "collective speech" in his dissenting opinion in McCutcheon: 1.

Number of times Chief Justice Roberts uses Breyer's phase "collective speech" —in quote marks — in his plurality opinion in McCutcheon: 4.

"Collective" is a poor word choice if you're talking about individual rights. It was the word used by the opponents of the individual right to bear arms as they litigated about the meaning of the Second Amendment in the Heller case.

16 comments:

mccullough said...

The collective also wants Justice Breyer to retire.

Ignorance is Bliss said...

"Collective" is a poor word choice if you're talking about individual rights.

It is an excellent choice of words to describe his poor concept of rights. It is only a poor choice of words if his goal is to hide the reasoning behind his opinion.

Bob Ellison said...

Yeah, I think Ignorance is Bliss has right: Breyer is not "talking about individual rights". Leftism demands group rights, group politics. Rights are something "communities", women, and ethnic minorities have. Individuals don't have rights.

Brennan said...

Third, our established First Amendment analysis already takes account of any “collective” interest that mayjustify restrictions on individual speech. Under that accepted analysis, such restrictions are measured against the asserted public interest (usually framed as an important or compelling governmental interest). As explained below, we do not doubt the compelling nature of the “collective” interest in preventing corruption in the electoral process. But we permit Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech; we do not truncate this tailoring test at the outset.

Sounds like Planned Parenthood v Casey. Justice Breyer writes the dissent denying the claims as an undue burden.

PB Reader said...

I thought his choice of the word "matters" was far more worrisome. There is no guarantee anywhere in the constitution that any right has to "matter"

It's a short walk from there to insisting that "collective rights" thus established outweigh individual rights.

gspencer said...

"Collective" is a straight-up totalitarian word.

In the Universal Declaration of Human Rights (1948) (UDHR) you can read about all the wonderful “rights” declared as universal. Really, it’s a nice exercise leafing through them. But be sure to follow the first and most important rule of statutory construction - read the whole statute.

There, in UDHR’s Article 29 you’ll find the pen of Justice Breyer (and Kagan and Ginsburg and Sotomayor),
“(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and 7the general welfare in a democratic society.”

That Article is a playground for any totalitarian government. In the non-Framers approach to government (embraced fully by Breyer et alia) then, government “gives,” but government can take away, and still be within compliance with the UDHR by simply referring to and relying upon Article 29 and its ability to protect the collective. If a “right’ can be taken away, then no right ever existed. No counterpart of Article 29 exists in the US Constitution.

Recall that the Declaration states the sole purpose of American government was to protect / guard individual rights; that is to say that rights that existed before any government ever came into being. “That to secure these rights [that is, the already-existing rights of individuals], Governments are instituted among Men, deriving their just powers from the consent of the governed [i.e., those same individuals]”

cubanbob said...

Third, our established First Amendment analysis already takes account of any “collective” interest that mayjustify restrictions on individual speech. Under that accepted analysis, such restrictions are measured against the asserted public interest (usually framed as an important or compelling governmental interest). As explained below, we do not doubt the compelling nature of the “collective” interest in preventing corruption in the electoral process. But we permit Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech; we do not truncate this tailoring test at the outset."

This mentality is at the heart of our problems. What part of enumerated powers, enumerated rights and that rights are inherit to the individual first does this guy not understand? Its this kind of thinking that allowed the courts to justify Jim Crow laws to begin with. if the court would only stick to what is it's proper sphere of competence which is only to determine whether or not legislation, regulation and policies are permissible within the framework of what the constitution as written permits we would not have so many mobocracy issues. Crack is right about when he argues that the constitution never really applied to blacks until recently and the mindset of this judge proves him right ( in a narrow sense and not his over the top sense). Jim Crow laws were certainly the collective interests as they were deemed to be at the time never mind that the constitution as written doesn't distinguish between classes of citizens (other than prisoners) and if the constitution as written was adhered to at the time there never would have been Jim Crow laws or the need to pass an amendment to allow woman the vote. Why is it such a struggle for the courts to get the concept that this is a nation founded on inherit individual rights and that the constitution clearly states that if one wants to read it as it is written in the plain text?

cubanbob said...

Third, our established First Amendment analysis already takes account of any “collective” interest that mayjustify restrictions on individual speech. Under that accepted analysis, such restrictions are measured against the asserted public interest (usually framed as an important or compelling governmental interest). As explained below, we do not doubt the compelling nature of the “collective” interest in preventing corruption in the electoral process. But we permit Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech; we do not truncate this tailoring test at the outset."

This mentality is at the heart of our problems. What part of enumerated powers, enumerated rights and that rights are inherit to the individual first does this guy not understand? Its this kind of thinking that allowed the courts to justify Jim Crow laws to begin with. if the court would only stick to what is it's proper sphere of competence which is only to determine whether or not legislation, regulation and policies are permissible within the framework of what the constitution as written permits we would not have so many mobocracy issues. Crack is right about when he argues that the constitution never really applied to blacks until recently and the mindset of this judge proves him right ( in a narrow sense and not his over the top sense). Jim Crow laws were certainly the collective interests as they were deemed to be at the time never mind that the constitution as written doesn't distinguish between classes of citizens (other than prisoners) and if the constitution as written was adhered to at the time there never would have been Jim Crow laws or the need to pass an amendment to allow woman the vote. Why is it such a struggle for the courts to get the concept that this is a nation founded on inherit individual rights and that the constitution clearly states that if one wants to read it as it is written in the plain text?

Austin said...

New York, New York, the city so nice, they named it twice...

rhhardin said...

Avoid latinized English.

Shared speech.

Left Bank of the Charles said...

Let's collectively all chant in unison:

The citizens united will never be defeated!

The citizens united will never be defeated!

The citizens united will never be defeated!

The citizens united will never be defeated!

Joe said...

Breyer's overall logic escapes me. As far as I can tell he holds the following position:

1) Free speech rights evaporate when there is a collective.

2) A collective determines free speech rights, thus only a collective actually has free speech rights.

Real American said...

Breyer is a justice that makes up the as he goes along to fit his preferred policy outcomes. It is not shocking then that he and other left wing justices on the court collectively made up complete bullshit and passed it off as a judicial opinion.

traditionalguy said...

Natural rights of individual men were a theory ignored by the British Empire. When the Continental Congress sent a Petition for reconciliation, King George III refused to read it, declared the Colonies to be in rebellion and announced a 20,000 man Army including hired foreign guns (Hessians) would invade us and kill us.

Than Thomas Paine wrote a pamphlet and men saw it for what it was...a damned criminal enterprise to steal North America.

The only question was whether the Redcoats Army could confiscate the gunpowder and lead before George Washinton and his Scots Irish volunteers could defeat them.

Austin said...

King George III didn't ignore the natural rights of man, he simply took the position that a general complaint that taxes are too high does not constitute a violation of those rights.

tim in vermont said...

The Left uses the "Citizens United" decision as justification for corruption of the IRS the same way they use their claims that 2000 was stolen as justification for vote fraud.

Big Data has a chance at getting to the bottom of vote fraud, the question is can they subvert our right of free speech before it happens, so that it never does.