“I will not attempt to discover whether legislation is “needed” before I have first determined whether it is constitutionally permissible. And If I should later be attacked for neglecting my constituents’ “interests,” I shall reply that I was informed their main interest is liberty and that in that cause I am doing the very best I can.”~ U.S. Senator Barry Goldwater
As the legislature reconvenes this week all elected officials should consider the standard set by Senator Goldwater. The U.S. Constitution was designed to restrain the power of government, and while primarily aimed at the national level, those limitations should nonetheless be heeded by state legislators when considering new laws.
One recent example demonstrates how easily the Goldwater Standard can be cast aside under the pressure of passing “needed” legislation: AB 1179 authored by Assemblyman Leland Yee. Assembly Bill 1179 requires violent video games to be labeled and prohibits the sale or rental of those video games to minors. A person who violates the act will be fined up to $1,000 for each violation.
Ignoring the responsibility of parents in this picture, one might argue that a law is “needed” to prevent minor children from playing particularly violent videogames. After all, violent video games might lead to violent and anti-social behavior. But, before voting on such a law a representative must ask the first question “Is it constitutional?” The answer in this case is not likely.
(Only) The Republican analysis in the Assembly clearly called into question the constitutionality of AB 1179, but the subject of constitutionality was raised in debate in both Houses. As such, even though some would prefer to ignore the “first question” they were forced to confront the issue of constitutionality.
The result…Members caved in and voted for what they believed to be popular (often the operational definition of what is “needed”). They decided to vote for AB 1179 and thus do damage to the U.S. Constitution. In the Assembly, only six members had the courage to vote “no” and in the Senate nine stood up for the Constitution (all Republicans). When it came to defending liberty and upholding the Constitution versus the “need” to regulate video games only 13% of California’s state legislators passed the test (broken down along partisan lines: 2.5% of Democrats and 30% of Republicans passed).
As thousands of bills are pushed through legislative committees in Sacramento this year, one can only hope that more members will have the courage to first ask, “is it constitutional?” and then ask “is it needed?”
2 comments:
Laurel Zimmer said: My question, then, is this: if you believe, as I do, that parental responsibility should govern video games, do you believe also that parents should be responsible for the regulation of pornography, ciagrettes, and other things we prohibit to minors? If not, where do you draw the line, and why?
The line is acutally fairly easy to draw here. Pornography (more specifically, harmful matter) is not protected speech under the constitution - and children should not be able to purchase it. Although, we know they all have access to it on darn near any seach engine on the web.
Cigarettes, alcohol, and many other things we prohibit to minors are not consitutionally protected speech (or constitutionally protected otherwise).
An argument can be made that the Yee bill is a marginal example for my broader point. But, it is an example and relevant to California government - so I used it.
laurel zimmer is a hottie.
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