I'm not clear on where we're disagreeing. Where do you keep getting bit about arresting people for their thoughts? I'm not talking about passing a law that specifically says, "Yelling 'fire' in a crowded theatre" is illegal, or thinking about doing so is illegal, or talking about doing so is illegal. I'm talking about a law saying that if you take an action, without sufficient cause, that you could reasonably foresee would lead to the injury or death of others, you should be punished in some way. Speech is simply one of those actions. Are these not the consequences you were thinking of?

While I agree with the general thrust of your post, I have to note: the prevalence and historical success of religion does not imply that it can make useful predictions. All it implies is that religion either makes it more likely one will pass on one's genes, or does not do sufficient harm to overtake the cost of selecting it out. There are all sorts of mechanisms by which this might be true (improved ability to cope with hardship, increased cultural bonds, etc.) that have nothing to do with the predictive value of its claims.

What about when it is the speech itself that causes the harm? That's the precise point of all this - we're not talking about punishing people for talking about yelling "fire" in a theatre, or even for arguing that people should (within limits). I don't want thoughtcrime, I want a limited form of speechcrime, where said speech either causes or directly leads to things the government should be preventing. That's a very important distinction.

Fine. Do you think that we should all be allowed to yell "fire" in crowded theatres? I don't. There, rethought. The ultimate question is whether you think government is ever correct to punish people for speech. I do. If you don't, say so outright. The fire example was Holmes's (in my view, reasonable) example of a situation where obviously the government should be able to step in. The historical fact that Holmes then goes on to value the government's ease of conscripting soldiers over political speech has no bearing on the basic principle that speech can cause harm, which government may be right to punish.

Incidentally, whether "the most famous use of a principle is blatant abuse thereof" is a far less useful indicator of a law's desirability than you seem to think. Controversy attracts attention, not to mention court cases, while regular usage of a law is ignored. Additionally, you'll find that there are many famous examples of people whom the courts have decided were completely protected. I direct you, most colorfully, to Paul Cohen, who walked into a courthouse with a jacket bearing the words "Fuck the Draft". If that's protected, what exactly is it that you'd like to do that isn't?

I agree with you that banning anonymity is a bad idea, but why does everybody keep thinking that the context of Schenck is relevant? Or in your case, apparently, that people should never be punished for speech? If speech causes the sort of harm that we otherwise have laws in place to prevent (i.e., riots, murder for hire, trampling), why shouldn't we punish people for it? Political dissent does not directly lead to that sort of harm, thus it should not be constrained. In those rare cases where we have overlap, that's why we have a court system. It didn't protect us properly in Schenck, but it has in many other cases. When you figure out how to have a perfect system of government, let me know.

I'm curious - do you or any others reading this have any suggestions for a good, solid, wide-ranging science news magazine? I like a lot of things about New Scientist, but I find its periodic wanderings off into pop drivel and (as you say) sensationalism tiresome. It's been better than many of the others I've found, though, which is a sad commentary on the field. What do you all read instead?

I'm not a psychiatrist, but I believe you may be thinking of this study and its precursors: Rice, M. (1997). Violent offender research and implications for the criminal justice system. American Psychologist, 52(4), 414-423. At least, a number of sources seem to cite to it for this claim, which is actually very interesting. One explanation was that the therapy served to increase the subjects' sense of self-worth and confidence, which made them even more dangerous. For them, only medication seemed to do any good. If the research the article describes can add more options, that seems to me like a good thing.

To address first a point from the middle of your reply, yes, I don't know what Sotomayor believes in. I only have the statements I've heard from her, and the general legal culture of the US, to go on, and I've asserted my best guess at what she believes based on them. I may be wrong, but so may you, and I don't think your interpretation works as well as mine with what I know. Hence my argument.

Her interpretation obviously doesn't fit with your view on the meaning of the Constitution, but your view isn't the only one in the world, and it's certainly not the only plainly correct one. From what I've heard, her view is entirely consistent with the mainstream legal understanding of US Constitutional law. You may think that's unconstitutional. I don't.

So, are you saying that these rights do or don't exist? You seem to be saying that the Constitution recognizes them, but as I've said, I don't think it does. The "endowed by their Creator with certain inalienable rights" line is from the Declaration of Independence, not the Constitution, and the D of I is not controlling law in this country. And by the way, are you saying that the government should or shouldn't be reconciling the Constitution with things like atheism, moral relativism, and socialism?

Yes, you are correct that Fifth Amendment due process is triggered by the government depriving people of life, liberty, or property. But there's a difference between being protected from deprivation by the government of these things, and having a positive right to these things. So yes, Sotomayor does (I believe) recognize these rights, but not "life, liberty, and the pursuit of happiness" more broadly. Nor are these rights "inalienable" - the core of a due process analysis is to balance the extent of the deprivation against the public need. I'm sorry I wasn't more clear on this earlier.

First of all, the government doesn't fuck with every aspect of your life. If you think they're more intrusive than they ought to be, fine. And perhaps the judiciary isn't being "lazy" (which I frankly don't understand how you've come to believe, given how much all of them have had to do to get where they are), but are trying to interpret the law to the best of their understanding, and for the good of the country as they see it. Obviously they have a different view of what's good for the country than you do. That doesn't make them lazy.

Way to argue calmly and rationally. Do you honestly think the courts just sit on their robed asses all day, rubber stamping government policy? The Supreme Court has ruled against many laws many times over the years. Just because they don't hold to your strictly originalist view of the Constitution doesn't mean they're lazy, it means you disagree with them.

How about you try arguing how you know that your theory of Constitutional interpretation will result in a better government and better life for its citizens, rather than gridlock and a paralyzed government?

Do you also agree with Jefferson that "[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means"?

Government is big and messy and complicated, and the actual practice of it doesn't reduce well to slogans. It's never going to be perfect, it can be better, but it's not inherently evil, and it's really not easy.

You do realize that the context of the example is yelling "fire" when there is none, thus creating a panic in which people may be trampled, yes?

Possibly because it's incredibly difficult to amend the Constitution, and even when you succeed, it takes a very long time?

Now, there are some benefits to operating a country this size on a more rigid standard of constitutional interpretation, but under that model you need an easier amendment procedure, because otherwise, when the situation changes, the government can become paralyzed, leading people to discard it entirely. It's a balancing question, and I don't think the current balance is completely wrong. Not completely sure, mind you, and I don't agree with a lot of what's been going on, but I think the core method is sound.

I don't think you're going to get very far with this distinction. What exactly is the difference between a right that is consistently violated and a right that has been alienated? That you still have it in name? That's not much comfort.

I don't think it's fair to say she doesn't recognize any rights beyond those defined by Congress either. She recognizes the rights in the Constitution, and those weren't defined by Congress.

In regard to "life, liberty, and the pursuit of happiness" (or property, depending on whether we're talking Dec. of Ind. or Locke), you're absolutely right that she doesn't consider those "rights". Nor should she, in the sense we're talking about. "Life, liberty, and the pursuit of happiness" is either a theoretical paradigm or a rhetorical flourish, depending on how you're approaching it, and neither way is a tenable basis to run a government from. You want to see the jurisprudence that would accumulate after a few years of people suing on the basis of the government denying them their right to pursue happiness? I sure as hell don't.

Also, what do you mean by, "in complete contradiction of the Constitution of the United States and most of the several states"? The Constitution nowhere talks about "life, liberty, and the pursuit of happiness", nor (to my knowledge), do most of the state constitutions. And yes, I saw your Ninth Amendment argument later on in the thread. It's ridiculous. The Ninth Amendment doesn't say a thing about what these retained rights are, making it a good aspirational sentiment for how the government should be run, but a terrible basis for jurisprudence. Which is why it's basically ignored by the courts, except when they're constructing more extended theories of rights, such as privacy rights in Griswold v. Connecticut .

Again, if that is your view on the important criteria for personhood, potential or otherwise, then yes, it's not relevant. But yours isn't the only view on that, nor is it obviously the correct one. All I'm saying is, it's an possible reply to certain views on personhood. If your view differs, then it's not a relevant objection to your view. That's fine. Just pretend this all never happened.

I'm aware. The fact that the Court hasn't always protected our rights to the degree they should doesn't change the nature of the law. Or do you think that people should be able to yell "fire!" in a crowded theatre?