Interesting Juxtaposition

Consider the following two paragraphs found in the same post on Brian Leiter blog:

...if you believe nationalized health care is preferable to a system which caters to the needs of the insurance industry; if you think redistributive taxation is a requirement of justice; if, in short, you dissent from the neoliberal paradigm and chauvinist nationalism that dominate the public sphere in the United States, you will have far more freedom of speech in Canada: for example, your views might be expressible outside your living room, perhaps, say, in major newspapers, or even on television. ...

In the U.S. I much prefer our more-or-less "libertarian" regime governing speech, and for reasons Fred Schauer pegged two decades ago in his book on the subject: not because the "marketplace" of ideas, such as it is, will yield the truth, or because speech doesn't "harm" people (it does, all the time), but rather because there is no reason to have confidence that the agents of the state in America will excerise their regulatory powers in the service of human well-being and enlightenment.

Strange, no? Leiter has no confidence that politicians will exercise their power properly in the realm of free speech. But in the realms of socialized healthcare and redistributive taxation, Leiter's concerns and skepticism of government's regulatory power go out the window.

I keep coming back to that Ronald Coase article I mentioned previously:

In the market for goods, the government is commonly regarded as competent to regulate and properly motivated. Consumers lack the ability to make the appropriate choices. Producers often exercise monopolistic power and, in any case, without some form of government intervention, would not act in a way which promotes the public interest. In the market for ideas, the position is very different. The government, if it attempted to regulate, would be inefficient and its motives would, in general, be bad, so that, even if it were successful in achieving what it wanted to accomplish, the results would be undesirable.

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Notice that Leiter says he

Notice that Leiter says he has no confidence in the agents of the the state in America. Presumably, he thinks that if the "right people" (i.e. people like him) were running the show, things would be peachy-keen.

I don't see a contradiction.

I don't see a contradiction. Prefering a publicly accountable gov't is preferable to having unaccountable tyrannies like HMO's running the show, though not absolutely preferable. Having the gov't leave speech unregulated for the general population, doesn't turn it over to another less desirable regulatory agency.

Regarding the last part, there is still a reasonable question as to whether gov't can regulate commercial speech within reason or approximately the purpose as above. I think it seems pretty plausible as well, but that's a ways off the subject.

HMO "tyranny" is rather

HMO "tyranny" is rather limited, don't you think, Matt? You get to choose to be in one in the first place. You get to see - through their contract before you sign it - what rules apply to you and to it and under what circumstances you can disassociate yourself from it. You can sue it for damages and wrongful action.

That last one been limited in some states, but that would be an exercise in state tyranny rather than HMO tyranny, wouldn't it?

HMO ?tyranny? is rather

HMO ?tyranny? is rather limited, don?t you think, Matt? You get to choose to be in one in the first place. You get to see - through their contract before you sign it - what rules apply to you and to it and under what circumstances you can disassociate yourself from it. You can sue it for damages and wrongful action.
last I checked, most people were insured by their employers and while there's still choice involved, it's oligopolistic choice at best. Without suitable alternatives, we're not talking about much of a choice anyway.

Let's look at your question another way: are you choosing to give a mugger your wallet when they have a gun to your head? Or is it a result of you choosing between two undesirable alternatives, and therefore not much of a choice at all? What we really want to do is make sure people are reasonably covered for health problems, not create retroactive justifications that allow us to blame the victim for their lack of foresight.

Are you also aware that HMOs have been shown to be less efficient than fee for service programs, and significantly less efficient than Canada's system? It's really quite the bureaucracy. Not to mention the rather questionable logic of having you health care provider quite literally qork against you to limit you doctor selection and treatment options.

That last one been limited in some states, but that would be an exercise in state tyranny rather than HMO tyranny, wouldn?t it?
you've got this backward- they started off unsuable and states fought it.

What first struck me wasn't

What first struck me wasn't his contradiction in trusting the gov't in medicine vs. speech, it was his contradiction in suggesting that liberal speech is suppressed in a system he himself favors:
"...you will have far more freedom of speech in Canada..."
vs.
"In the U.S. I much prefer our more-or-less 'libertarian' regime governing speech..."

How can these sentiments possibly be reconciled?
--
And on the issue of HMO's vs. the state, *NEVER FORGET* that HMO's exist only because of the particulars of the current federal regulatory regime. Also *NEVER FORGET* that the state is fundamentally unaccountable, whereas private organization must always satisfy /someone's/ needs (matt, I'm looking in your direction). I'm no fan of HMO's, but anyone who thinks the government will be more responsive to individuals' needs is off in la-la land.

And on the issue of HMO?s

And on the issue of HMO?s vs. the state, NEVER
Noah, I meant to point out that bit about the "more free speech in Canada" as being pretty weird- I don't know what he means.

FORGET that HMO?s exist only because of the particulars of the current federal regulatory regime. Also NEVER FORGET that the state is fundamentally unaccountable, whereas private organization must always satisfy /someone?s/ needs (matt, I?m looking in your direction). I?m no fan of HMO?s, but anyone who thinks the government will be more responsive to individuals? needs is off in la-la land.
Noah, I think you've got it wrong here- democratic states are fundamentally accountable. Let's try a thought expiriment: suppose Microsoft bought and owned the whole US, then decided to make a few purely superficial changes. The CEO was now to be called the "Secretary-General," that Board of Directors to be called the "politbureau" and the stockholders to be called "party members." It would be absolutely identical to the USSR. It's a fundamentally totalitarian structure.

Furthermore, claiming that it has to produce goods people will purchase does not make it "accountable" in any real sense. Purchasing goods is not a vote, pretty obviously. I think in Business classes this is called "consumer sovereignty" and seems to be more of a joke idea than anything else. I might also add that if you consider this "need-satisfaction" as accountability, then all totalitarian regimes were accountable as well, as they recognized (there were considerations of revolt and such things if the gov't got way too out of hand.)

As far as your "hmos only exist because..." comment, I couldn't agree more. The market doesn't exist in a vaccuum- take any major sector of business (x) and you could say "x only exists because of state intervention" and in the US (and many other countries) you would be right. That's not an argument for the free market though- it has nothing to do with such a thing.

It seems that Mr. Leiter's

It seems that Mr. Leiter's idea of "more freedom of speech" could be better expressed as "having fewer people that disagree with you". A bizarre interpretation, to say the least.

I am continually puzzled that so many self-proclaimed dissenters cry censorship in the face of...well...dissent.

Prefering a publicly

Prefering a publicly accountable gov?t is preferable to having unaccountable tyrannies like HMO?s running the show, though not absolutely preferable.

False dichotomy. The analogy to free speech and heavily regulated speech is between a free market for heatlh care and heavily regulated care (either through complete socialization or partial socialization with tax regulations which created our current HMO system).

Having the gov?t leave speech unregulated for the general population, doesn?t turn it over to another less desirable regulatory agency.

Sure it does. ABC, NBC, NYTimes, Clear Channel; the list goes on and on. Aren't you a big fan of Chomsky on this issue?

Regarding the last part, there is still a reasonable question as to whether gov?t can regulate commercial speech within reason or approximately the purpose as above. I think it seems pretty plausible as well, but that?s a ways off the subject.

So I guess you disagree with Leiter when he writes: "there is no reason to have confidence that the agents of the state in America will excerise their regulatory powers in the service of human well-being and enlightenment."

If so, you are consistent, unlike Leiter. Consistently wrong. :)

The analogy to free speech

The analogy to free speech and heavily regulated speech is between a free market for heatlh care and heavily regulated care (either through complete socialization or partial socialization with tax regulations which created our current HMO system).
we were discussing the quote: "?if you believe nationalized health care is preferable to a system which caters to the needs of the insurance industry..." Is that a free market to you? I thought he was talking about HMOs. In any case, I would say "false dichotomy" as to the "regulated vs. unregulated" distinction. It's just differently regulated.

Sure it does. ABC, NBC, NYTimes, Clear Channel; the list goes on and on. Aren?t you a big fan of Chomsky on this issue?
oh I certainly am, and on other issues as well. by the way- did you see my throffer about asking a question to chomsky? Anyway, those organizations aren't regulating speech, they are simply shouting over the other voices. As I wrote, it's still problematic, but it's not analogous to health care. Why? Because of postive v. negative freedoms distinction. It's not neccesarily better; just different.

?there is no reason to have confidence that the agents of the state in America will excerise their regulatory powers in the service of human well-being and enlightenment.?
depends on what is meant by the quote. If it's understood to mean "we can't expect the state to be altruistic" I agree. If it means "no level of social organization can ever achieve change in government behavior" then I couldn't disagree more.

Matt, by the way- did you

Matt,

by the way- did you see my throffer about asking a question to chomsky?

I don't know what this means. I have no questions for Chomsky.

Anyway, those organizations aren?t regulating speech, they are simply shouting over the other voices. As I wrote, it?s still problematic, but it?s not analogous to health care. Why? Because of postive v. negative freedoms distinction. It?s not neccesarily better; just different.

HMOs aren't regulating health care, they are simply shouting over other providers by taking advantage of the tax breaks and offering health care through people's employers. They themselves are heavily regulated by the government regarding who they can and cannot offer insurance to.

There is no important distinction between the two (HMOs and news orgs). There is some competition in both industies and much regulation.

I don?t know what this

I don?t know what this means. I have no questions for Chomsky.
I was joking about the "throffer" part. I just happen to belong to the webboard that can ask Noam questions and/or argue with his positions. If you are interested I would facilitate such an asking; you've written that you are fascinated with "Genius" and agree with him or not this guy is one.

HMOs aren?t regulating health care, they are simply shouting over other providers by taking advantage of the tax breaks and offering health care through people?s employers. They themselves are heavily regulated by the government regarding who they can and cannot offer insurance to.
there are important differences. In a political vaccuum (or a desert) people have freedom of speech; they don't have insurance coverage. Speech is supplied by almost every person, and demanded by most persons. I think these are substantive differences. But even if they're not, fine with me- I am of the sort who believes rights to health care are nearly as strong as rights to speech.

Ah yes, Znet. Comments on

Ah yes, Znet. Comments on Chomsky's blog closed down before I could see what all the fuss was all about. So much for "free speech." :P

Here's a amateur philosophical question for you: If a tree falls in a forest and there's no one there to hear it, does it make a sound? If a man is all alone in a political vacuum/desert island, and there is no one who can hear him speak, does he really have freedom of speech? If Stalin proclaims that anyone who opposes the Communist Party is free to discuss his opposition with himself, but not in public, is that free speech?

The point here is not if rights to health care are nearly as strong as rights to speech; rather the question is why, if one accepts the principle that "there is no reason to have confidence that the agents of the state in America will exercise their regulatory powers in the service of human well-being and enlightenment" with regard to speech should this same principle not also apply to health care.

If a tree falls in a forest

If a tree falls in a forest and there?s no one there to hear it, does it make a sound?
no, it doesn't- it produces "sound waves", but a sound is a complex subjective experience resulting from an interaction of memories, states of mind, and multiple other factors. The real answer is just: "what does sound mean?"

If a man is all alone in a political vacuum/desert island, and there is no one who can hear him speak, does he really have freedom of speech?
In a sense, sure. But if you are implying that we should seek stronger rights than that for freedom of speech- I couldn't agree more.

If Stalin proclaims that anyone who opposes the Communist Party is free to discuss his opposition with himself, but not in public, is that free speech?
no, it's not.

?there is no reason to have confidence that the agents of the state in America will exercise their regulatory powers in the service of human well-being and enlightenment? with regard to speech should this same principle not also apply to health care.
because it's preferable to the alternative. How did the US get such indredible strong rights? Through popular democratic movements that basically won them.

Another important point is that "trusting the gov't to not limit" free speech is substantially different than trusting it to give you something like health care. Suppose the gov't wasn't entirely trustworthy and didn't insure everyone. Well that sucks, but it's not as bad as having some people actively silenced.

The real answer is just:

The real answer is just: "what does sound mean?"

Yep.

because it's preferable to the alternative.

That doesn't answer the question. What makes speech so much different than health care that we can trust the government regulators when it comes to one and not the other? If government control of health care is preferable to the alternative then why isn't government control of speech also preferable to the alternative?

How did the US get such indredible strong rights? Through popular democratic movements that basically won them.

That's not true. The writing, signing and enaction of the Constitution were not popular democratic movements. They were movements mostly controlled by wealthy, priveledged elites who had a chip on their shoulder against England and were luckily very classically liberal in their political views.

Suppose the gov't wasn't entirely trustworthy and didn't insure everyone. Well that sucks, but it's not as bad as having some people actively silenced.

Why is one not as bad as the other? I would rather be silenced than die from inadequate health care.

What makes speech so much

What makes speech so much different than health care that we can trust the government regulators when it comes to one and not the other? If government control of health care is preferable to the alternative then why isn?t government control of speech also preferable to the alternative?
Well now that you mention it, the government does regulate speech. "Time Place and Manner" restrictions are placed on speech all the time for a variety of reasons, and for the most part they are reasonable. Should people be allowed to buy a loud bullhorn and shout "you're all gonna fucking die!" outside a hospital at 3 a.m.? So the government does regulate speech. The question is- do we want the government regulating speech according to its whims? Of course we don't and same with health care. The gov't shouldn't be able to just deny claims as it sees fit, but should be subject instead to a certain code of conduct.

That?s not true. The writing, signing and enaction of the Constitution were not popular democratic movements. They were movements mostly controlled by wealthy, priveledged elites who had a chip on their shoulder against England and were luckily very classically liberal in their political views.
This doesn't require a whole lot of research:
http://college.hmco.com/history/readerscomp/rcah/html/ah_033200_freedomofspe.htm
that's the first link that came up on google and it explains it rather nicely. While "freedom of speech" is in the constitution, it was basically only applied to freedom of the press until the the 20th century. Major steps came during the civil rights movement. As I said: popular struggle.

ANother good exmaple is the cherished right to privacy many people assume is in the constitution. It's not. The court later ruled that it was to be found "in the shadows" of the amendments. WHile I agree that the framers were wealthy elites, and that's why the US struggles as a democracy (because Madison thought the "role of government is to protect the minority of the opulent from the majority.") They also had remarkable taste in philosophy and were pretty bright fellas. We don't owe them everything though.

Well now that you mention

Well now that you mention it, the government does regulate speech. ?Time Place and Manner? restrictions are placed on speech all the time for a variety of reasons, and for the most part they are reasonable.

I agree, but this is in no way analogous to socialized healthcare. It would be closer to reasonable restrictions (perhaps enforced by the common law through courts) on medical malpractice, medical fraud, etc. You don't seem to believe the government should go any further than enforcing the most limited restrictions on speech (primarily, I assume) because you don't believe it would be trustworthy enough to do so. Yet you do believe the government would be trustworthy enough to command and control the medical industry. That appears to be an inconsistency.

While ?freedom of speech? is in the constitution, it was basically only applied to freedom of the press until the the 20th century. Major steps came during the civil rights movement. As I said: popular struggle.

The article you cited hardly supports your position. It credits classical liberal political philosophy, the Constitution, and Supreme Court jurisprudence as the primary sources for our strong rights to freedom of speech. Even when it mentions the civil rights movement, it credits the courts and not the activists and certainly not any popular democratic movements. Further, if you want to know why the U.S. citizens have such strong rights to freedom of speech, look no further than in comparison to Canada. Canada has a very similar history to the U.S., went through the same civil rights issues, and is more socially "progessive" than we are, yet their right to free speech is much weaker than ours, as the original post in this thread makes clear. Why is this the case? Because Canada has no constitutional protection for free speech.

ANother good exmaple is the cherished right to privacy many people assume is in the constitution. It?s not. The court later ruled that it was to be found ?in the shadows? of the amendments.

The proper term is "emanations and penumbras," a source of much hilarity to anyone who takes the Constitution seriously. But this again is not an example of popular democratic victory; rather, it is a result of (you guessed it) wealthy, priveledged elites in the form of Supreme Court Justices who ignored the 9th, 10th, and 14th Amendments, not to mention the body Constitution itself and rejected any notion of enumerated powers or unenumerated rights, and instead invented an imaginary justification for a textual right to privacy, so that they could protect their favored "progressive" rights like abortion without capitulating to "regressive" notions like economic liberty. A travesty of justice if I've ever seen one.

I agree, but this is in no

I agree, but this is in no way analogous to socialized healthcare. It would be closer to reasonable restrictions (perhaps enforced by the common law through courts) on medical malpractice, medical fraud, etc.
that's not analogous. That has to do with regulating medical care, not health insurance.

You don?t seem to believe the government should go any further than enforcing the most limited restrictions on speech (primarily, I assume) because you don?t believe it would be trustworthy enough to do so.
the gov't has a vested interest in not having free speech, and free speech often occurs in the margins, where jackets that say "fuck the draft" are opposed popularly and by the state.

But look, this is a small matter. If you've got arguments you should present them, because right now you're simply saying "You can't trust Joe Schmoe to file your taxes how can you trust him to make your hamburger/repair your car/ own a gun etc." I've given you a few good reasons:
a. because at this point the alternative is trusting even less accountable institutions.
b. because the governments power interests give them a big reason to restrict speech, but less so with health care.

You've been redirecting my arguments in two ways:
asking me to talk about the philosophic differences between health care and speech, and asking me why I favor gov't managed care over the privatised system. Often when I respond to the second (like "it's better than the alternative") you refer me to the first, and when I respond to the first you refer me to the second (as heppend when I mentioned time place and manner restrictions.) As I said, if you have arguments, make them.

The article you cited hardly supports your position. It credits classical liberal political philosophy, the Constitution, and Supreme Court jurisprudence as the primary sources for our strong rights to freedom of speech.
it credits all sorts of things- history's a complicated affair you know.

it says:
The period from 1791 to the early twentieth century saw almost complete judicial noninvolvement in free speech and free press questions, and public discussion was devoted largely to free press rather than free speech ideas.
It changes in the early 20th when, I'm sure coincidentally, radical social and labor movements
were prominent. It begins by protecting the rights of groups that had started protecting themselves. There are Historians who interpret every change in history as a simple change in the personalities of those in power: ala "LBJ was a great humanitarian who believed in the black people and that's why the Civil Rights act was passed." This has always struck me as shoddy, but it's an incredibly easy way to do things: just find out what people said about themselves, ya know? Anyway, suffice it to say that I think the government (including the courts) responds to public pressures more so than the internal whims of its components.

look no further than in comparison to Canada. Canada has a very similar history to the U.S., went through the same civil rights issues, and is more socially ?progessive? than we are, yet their right to free speech is much weaker than ours, as the original post in this thread makes clear. Why is this the case? Because Canada has no constitutional protection for free speech.

I guess technically you're correct. They use the much broader "freedom of expression" which is what "speech" has been interpreted as meaning in our courts to my knowledge. Here ya go:

Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

The proper term is ?emanations and penumbras,? a source of much hilarity to anyone who takes the Constitution seriously.
do you disagree with the ruling? It's an interesting case.

But this again is not an example of popular democratic victory; rather, it is a result of (you guessed it) wealthy, priveledged elites in the form of Supreme Court Justices who ignored the 9th, 10th, and 14th Amendments,
hmmm.. the 9th? They cited that one as an example, they certainly didn't ignore it. Like I said before, if your preferred way of looking at history is simply personalities of the actors then we've got major disagreements. In that case, I don't see why you'd oppose the state- most policemen I've met are fairly nice guys.

and instead invented an imaginary justification for a textual right to privacy, so that they could protect their favored ?progressive? rights like abortion without capitulating to ?regressive? notions like economic liberty. A travesty of justice if I?ve ever seen one.
I think you mean "birth control" which was what was at issue in the Griswold v. Connecticut case we're talking about. What would you have preferred, incidentally? I thought the ruling that "the state must overcome the presumption of the individual's liberty" was quite reasonable, and well in line with my thought most issues.

-Matt

that's not analogous. That

that's not analogous. That has to do with regulating medical care, not health insurance.

You of all people should recognize that funding something and controlling something are integrally related. If you want a better example, think of medicare or medicaid refusing to fund some of the more ridiculous alternative "medicine" schemes.

If you've got arguments you should present them, because right now you're simply saying "You can't trust Joe Schmoe to file your taxes how can you trust him to make your hamburger/repair your car/ own a gun etc." I've given you a few good reasons:
a. because at this point the alternative is trusting even less accountable institutions.
b. because the governments power interests give them a big reason to restrict speech, but less so with health care.

I think I've made my argument well; I keep on repeating it because I have not yet heard a good response from you. Regarding "a", it seems to me that you run into the same problem with free speech - if the government doesn't regulate it, private multinational corporations will.

Regarding "b", perhaps. I could see how certain kinds of speech could be much more threatening to politicians than certain kinds of health care. Still, what I get from Leiter's original quote is that we shouldn't trust government, not simple to be trustworthy in the general sense, but trustworthy in the sense of having the public's interests as opposed to their own selfish interests at heart.

Often when I respond to the second (like "it's better than the alternative") you refer me to the first, and when I respond to the first you refer me to the second (as heppend when I mentioned time place and manner restrictions.)

Right, I do this because most of your arguments for one apply to the other and vice versa.

It changes in the early 20th when, I'm sure coincidentally, radical social and labor movements
were prominent. It begins by protecting the rights of groups that had started protecting themselves. There are Historians who interpret every change in history as a simple change in the personalities of those in power: ala "LBJ was a great humanitarian who believed in the black people and that's why the Civil Rights act was passed." This has always struck me as shoddy, but it's an incredibly easy way to do things: just find out what people said about themselves, ya know? Anyway, suffice it to say that I think the government (including the courts) responds to public pressures more so than the internal whims of its components.

I also reject the "personality" explanation of history, at least as a general form of explanation, but I think in this case it is valid. Jurists like Holmes really did change the law, and not out of any solidarity with radical movements. Holmes was not a radical and initially opposed their efforts, but later reasoned that free speech is necessary if democracy is to have legitimacy (it doesn't, but that's his argument). Regardless, the article does little to support your contention that popular democratic movements were the force behind the enaction of strong free speech rights.

The proper term is "emanations and penumbras," a source of much hilarity to anyone who takes the Constitution seriously.
do you disagree with the ruling? It's an interesting case.

Of course I disagree with the ruling. I certainly agree with the outcome of the ruling, i.e. striking down the prohibition on sale of contraceptives. [The case is Griswold v. Connecticut (1965), by the way.] But the judges could and should have reached the same conclusion without appealing to any imaginary semi-enumerated right to privacy; rather, they should have appealed to fundamental rights to liberty found in the 9th and 14th Amendments. Doing so, of course, would have weakened the modern misinterpretation of Commerce Clause jurisprudence.

hmmm.. the 9th? They cited that one as an example, they certainly didn't ignore it.

If so (I'm not intimately familar with the opinion), they interpreted the Amendment very narrowly, without extending its protection to any other rights other than privacy. That is still ignoring the issue.

Like I said before, if your preferred way of looking at history is simply personalities of the actors then we've got major disagreements.

In terms of how a small number of Supreme Court judges decide cases, personalities are extremely important. Judges don't and shouldn't simply stick their finger out in to the wind to see what popular opinion is. They need to decide for themselves, and they decide based in large part on their own personal experiences.

What would you have preferred, incidentally? I thought the ruling that "the state must overcome the presumption of the individual's liberty" was quite reasonable, and well in line with my thought most issues.

As I said, I agreed with the outcome; I just disagreed with the reasoning. And this opinion set precedent for all the years till the present.

And no, this decision certainly did not entail a presumption of liberty; rather, it maintained the pre-existing presumption of constitutionality while making one small exception for the right to privacy by claiming such a right was specifically protected by the Constitution, which of course it is not.

You of all people should

You of all people should recognize that funding something and controlling something are integrally related. If you want a better example, think of medicare or medicaid refusing to fund some of the more ridiculous alternative ?medicine? schemes.
sure, but the gov't controls things by force, no? Funding things shouldn't give them additional control- they've already got it.

Regarding ?a?, it seems to me that you run into the same problem with free speech - if the government doesn?t regulate it, private multinational corporations will.
right, and you and I both prefer the govenrmental enforcement of Time,Place, and Manner restrictions I suppose? Maybe not, but this is not an inconsistency in my position. They will certainly produce louder more effective speech, but that's a different problem. One is with preventing people from speaking (negative right) the other is with giving people a capacity to be heard (positive right.) The first, in a vaccuum, is practically worthless, but since this is the real world we are dealing with matters of degree. I happen to completely agree that Media size and concentration is a huge problem, but not the same as a negative right to free speech.

I also reject the ?personality? explanation of history, at least as a general form of explanation, but I think in this case it is valid. Holmes was not a radical and initially opposed their efforts, but later reasoned that free speech is necessary if democracy is to have legitimacy (it doesn?t, but that?s his argument).
There has been judicial activism (though as Legal Historian Arthur Selwyn Miller points out, it's often in line with powerful economic interests.) Anyway, I actually think you've made my point for me- he intitially rejects the idea, but it keeps coming back. WHy? Because powerful interests are promoting it, with the money to fight multiple legal battles, and the public support (among other factors) to get a supremem court hearing.

[The case is Griswold v. Connecticut (1965), by the way.]
I wrote that in my last response.

they should have appealed to fundamental rights to liberty found in the 9th and 14th Amendments. Doing so, of course, would have weakened the modern misinterpretation of Commerce Clause jurisprudence.
Well they did, actually. The 14th and the 9th (along with the 4th and 5th) were the major amendments they cited. I haven't heard the commerce clause aspect though- could you follow up?

If so (I?m not intimately familar with the opinion), they interpreted the Amendment very narrowly, without extending its protection to any other rights other than privacy. That is still ignoring the issue.
well, to my knowledge the 9th is just interpreted as claiming that the bill of rights is not exhaustive, which bolstered thier case. Additionally I believe their ruling was based on certain geopolitical peculiarities (the world being a much more dense place than in the 1780s) that allowed them to surmise it.

Have you heard about the "liberty of conscience" Madison wanted to put in? That would have made these questions infintiely easier.

In terms of how a small number of Supreme Court judges decide cases, personalities are extremely important. They need to decide for themselves, and they decide based in large part on their own personal experiences.
I admit that it's more important than in other realms of gov't. At best the courts seem to act like vestiges of another age (as they did during the New Deal.)

And no, this decision certainly did not entail a presumption of liberty; rather, it maintained the pre-existing presumption of constitutionality while making one small exception for the right to privacy by claiming such a right was specifically protected by the Constitution, which of course it is not.
This is Barnett's analysis, no? Interesting- I'll check into this issue.