The Constitution is Frozen in Time. Unless It Isn't.

My previous post may have glossed over the real issue decided by Justice Tony and the Scalia Court, as it is now called, on January 21, 2010.  Not intentionally... Okay, intentionally, but only because it would be complicated and, worse, sillier than a Newt Gingrich essay on Family Values.  And I hadn't figured it out.  But this is too important a ruling to leave unexplained.

Does the Constitution protect all forms of speech?  If I am a Scaliaist, I'd have to say, "It did last Thursday."

The Constitution is not an organic document, except that it was printed on organic matter, but it was dead organic matter.  And the Constitution is like that.  It only incorporated ideas, modes, mechanical devices and the very law of the late 18th century, as well as all manner of different spelling of any given word.

Simply put, the First Amendment is from that time.  It protects freedom of speech, the Gutenberg press and religion, as long as God is a Christian.  We are only interested in speech for the moment.

Scaliaists, such as I, have long held that the Constitution and its first batch of Amendments only restrict the Federal government in restricting rights as they were in 1787 through, 1791.  That is when Virginia got around to ratifying the bedrock Bill of Some Limited Rights. Of course, the Constitution and the various Rights were discussed ad nauseam (the use of Latin is protected, of course, if not desirable) even before being officially adopted.

Cars were not invented until after 1791, so hiding something in your car should not be protected by the Fourth Amendment, unless it is crystal meth, which did not exist then either.  Hence, the Fourth Amendment does not protect you from a police search of your car because your tail light was broken.  Tail lights did exist in 1791, even if they burned whale oil and were often cracked, so they are acceptable rationale for avoiding the Fourth Amendment.

But speech is the key to democracy.  Everybody talked in 1791.  So talking is protected, unless you yell fire in a crowded theater, unless there really is a fire, fires having existed in 1791, too.  Everybody who could talk or write with a quill pen bitched about the government, so those modes are protected. Using a hand-operated printing press is protected and so is shouting like a town-crier.  But what about on-demand movies showing up on your TV with an honest appraisal of the demon Hillary Clinton.

Well, demons did exist, so that part is fine by the First Amendment.  Hillary herself didn't, so she's not protected.  Many people would speak on-demand, so on-demand is protected.  But TV?  Including, those really nice 55" LCD or Plasma sets at Best Buy?  That is not so obvious, is it?  They are sort of like really clear billboards, but billboards only existed to tell you how few people lived in your town in 1791 and never counted the local demons.

Here you see the Scalia Court dilemma.  This stuff is complex.  TV's weren't around in 1791, so anything appearing on them can't be protected by the First Amendment, unless the screen shows only a wood plank with the population of your town on it.  That means Congress can regulate speech, including corporations' (they having existed in 1791), that shows up on TV or even the Internet, the invention of which I can remember myself and thank you Al Gore.

But that is not the point.  We need more money for political campaigns, especially since that guy, who shall remain nameless to us Scaliaists, except maybe as code-named The Big O, came along raising scads of millions on Al Gore's invention.  So never mind what we Scaliaists have said in the past.  Things change.  TV is the town crier of the day.  That Web thing is like a printing press only in the clouds

So.  Let the corporations speak or, since they don't actual have voices or quill pens, let them pay unlimited amounts of money to have politicians and, one hopes, bloggers speak for them.

I guess it wasn't so complicated after all.  Just silly.