The nonstop debate over the constitutionality of the Patient Protection and Affordable Care Act has regrettably drawn attention away from the Supreme Court’s 6–3 decision in United States v. Alvarez, which struck down the 2005 Stolen Valor Act (SVA) on First Amendment grounds. The operative provision of that statute reads:
FALSE CLAIMS ABOUT RECEIPT OF MILITARY DECORATIONS OR MEDALS. — Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States . . . shall be fined under this title, imprisoned not more than six months, or both.
The statute increases the maximum penalty for the offense to one year when the misrepresentation applies to the Congressional Medal of Honor.
The great flaw in our current First Amendment jurisprudence starts from its false premise that lies are really not that bad after all. Here, the Court became emboldened to strike down the SVA, which rests on a powerful intellectual pedigree.
The truth is, the Court’s constitutional jurisprudence has become increasingly incoherent. The root of the current constitutional malaise—which I have written about here and here—stems from the complete dissociation of constitutional law from ordinary theories of personal responsibility as developed by the common law. Hence, we find ourselves in an unhappy position. The government today is unable to cope with certain forms of admitted fraud. At the same time, it is not required to honor its most basic commercial and business imperatives, as its recent ruling on special assessments inArmour v. Indianapolis demonstrated. You cannot get results that bad by accident. It takes a deeply misguided constitutional worldview to get there—a worldview that is all too often practiced by a majority of the justices on the Supreme Court of the United States.
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