I agree with Bernstein: Breyer’s dangerous dissent in McCutcheon (the campaign finance case). Creepy and dangerous. A quote:
...leading Progressive defenses of freedom of expression, such as Zechariah Chafee’s, relied on utilitarian considerations and not on freedom of expression as a fundamental individual right. Progressives identified freedom of speech as a civil liberty to differentiate it from what Progressive understood to be the obsolete, individualist, natural-rights based liberties of the American past. While activist government was inimical to such rights as liberty of contract and property rights, it arguably buttressed a Progressive case for freedom of speech. According to Progressive advocates of constitutional protection for freedom of expression, the more active a role played by government, the more important it is to ensure that public policy is subject to vigorous and uninhibited debate. Such debate not only could bring important considerations to light, but also could serve as a check on those who would use public power for private gain, which in turn would lead to better public policy, which in turn would create a welcome demand for even more government.
Freedom is not utilitarian, and not meant to be. Freedom is, by nature, messy, difficult, and contentious. Furthermore, freedom is not meant to help government, or to help anything in particular other than the human spirit. If anything, freedom is meant to be against government power. Where is Breyer coming from?
America is not a government. America is a bunch of individual people. Who bankrolled Tom Paine's writings? The wealthy Tom Jefferson did, as I recall, out of his own fat pocketbook.
As Ace comments, the masks are now all coming off now.
Yes, the 1st Amendment lives to fight another day. Maybe New York was right to insist on the Bill of Rights. Should never have been necessary, though. The fascists and statists hate it.
More on the topic from Ann Althouse.
