This extra-constitutional Constitutional “right” was used in 1973’s Roe v. Wade to legalize abortion and, most recently, last summer to toss out a Texas law banning sodomy. It’s been reaffirmed in ruling after ruling, and is clearly still expanding.
Which brings us back to the First Amendment. Since it’s actually in the Constitution, why is it shrinking, rather than expanding? Lawmakers bear much of the blame, of course. After all, they’re the ones who passed McCain-Feingold in the first place.
Supreme Court Justices O’Connor, Stevens, Steven Breyer, David Souter and Ruth Bader Ginsburg shoulder even more of it, for misreading the First Amendment and deciding that it allows Congress to place restrictions on certain types of political speech.
But President Bush bears the most blame. He knew McCain-Feingold was unconstitutional. “I believe individual freedom to participate in elections should be expanded, not diminished,” he announced at the bill signing in March 2002. Then he signed a bill that will diminish public participation in elections.
“When individual freedoms are restricted,” Bush continued, “questions arise under the First Amendment. I also have reservations about the constitutionality of the broad ban on issue advertising.” But for political reasons, he punted the issue to the courts, and hoped they would do the right thing. They didn’t.
Eventually, a future Supreme Court ruling will overturn large sections of the McCain-Feingold, perhaps after we witness the amusing spectacle of someone being hauled off to jail for attempting to televise a political ad attacking Sen. Jones or Rep. Smith on Nov. 1.
But until that happens, we’ll just have to do what Congress has ordered -- keep our mouths shut.