Monday, April 10, 2006

Second Post, and Virtual First Amendment

I'm still experimenting with this Blog thing, but here is something I wrote a long, long time age, and I suddenly have the place to show it:

On Constitutional Interpretation

I enjoyed reading Barry Krusch's "Would the Real First Amendment Please Stand Up? ( In it, Krusch argues that the US Supreme Court has radically altered the meaning of the First amendment. The sole purpose of the amendment is to prohibit Congress, not the Federal government as a whole and certainly not the states, from making any law that prohibits any kind of speech. The Court is wrong to distinguish between "protected" and "unprotected speech". As the late Supreme Court justice Hugo Black famously put it "'No law" means 'No Law'

I want to defend the assertion that, bizarre as it may sound, Judge Black was wrong. I think that both common sense and the historical record dictate that the US Supreme Court actually does a fairly good job on the lines of interpreting the Constitution. While I will not defend any particular test or decision of the Court's, I will argue that the Supreme Court correctly recognizes that (1) The first amendment originally referred not only to Congress but to the Federal Government as a whole, that (2) The passing of the 13th, 14th and 15th amendment marks a significant shift in the Constitutional system of the US, thus expanding the prohibition of limiting free speech to the States. Most unintuitively, I think that (3) the Supreme Court is correct in not regarding every form of expression as 'free speech' for the purposes of the first amendment.

When analyzing the Constitution we should keep John Marshall's famous statement in mind: "We must never forget that it is a constitution we are expounding" Interpreting the Constitution is not merely an exercise in historical analysis or in logic, although it must entail both. Determining the meaning of a Constitution is an act of governance – and the role of the Supreme Court, like the role of every over political organ in the United States, is determined in the American Constitution: "[to] establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity"

The Art and Science of Constitutional Interpretation

(1) "Congress shall make no law": The First Amendment specifically forbids Congress from making any law prohibiting the freedom of speech. But does that mean that any other agent of the federal government can limit that freedom? If the purpose of the First Amendment is to protect freedom of speech, that makes would make no sense. After all, Congress is in control of the Federal budget. Any agent of the Federal government is a paid agent of the US Congress.

Suppose a law forbids me from doing something, does it make sense to allow me to do it though an agent? There is a Hebrew expression that says, in effect, "The opinion that counts is the opinion of the rich". Or in American parlance: "Money Talks". If an agent of Congress could suppress the freedom of speech it would completely void the first amendment.

(2) The Fourteenth Amendment and the Second American Revolution:
Central to the understanding of the so-called "incorporation" doctrine (that is, applying the protections of the Bill of Rights to the States) is the Fourteenth Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The context to this article is vital to understanding its meaning. Simply put, the Fourteenth Amendment is the constiutionalisation of the greatest change to have occurred in the America since its founding and until the present day: The American Civil War.
The American Civil War was a second American Revolution. It utterly transformed the economic, social and political balance between the Agrarian South and the Industrialist North, and it brought a radical change in conception of race relations in the United States.

Until the Civil War, the United States was dominated by Southerners and Southern interests: Most of the Presidents, Cabinet Secretaries, Supreme Court Justices, etc, were from the South. The US Constitution was largely conceived by Virginian James Madison, in a convention presided by George Washington and the first twelve amendments to the constitutions were carried out under Southern Presidents: Washington and Thomas Jefferson.

The pre-1865 constitution, thus, was a Southern constitution, based on Federal principle very different then the principles of Modern America. The main purpose of the Constitution, and particularly of the bill of rights, was to protect US citizens and States from the Federal government. The protection of the state's citizens from the state was to be done through the state constitutions, not the Federal one. Thus, up to and even during the Civil War, Northern antislavery advocated all agreed that the constitution forbade the Federal Government from abolishing slavery in the states – and the more extremist of them, like William Garrison, called it a "Covenant of Death, and an Agreement with Hell" for that reason.

But the Civil War changed everything. It brought to power, for a brief period, a group that wanted a complete change in the Southern social order. The Republican Congress in the 1860s had a completely different conception of national power than any that came before. For a variety of motives, both noble and base, post war Republicans wanted to use Federal power to protect American blacks from white Southerners. Following that view, President Grant had sent in Federal troops to protect Reconstruction governments and to fight off the Ku Klux Klan. And the constitutional manifestations of this view were the 14th amendment.

The 14th amendment transformed the antebellum Constitution. The role of the Constitution was not only to govern the Federal system – now the Constitution was also there to protect the people from the states they were living in. The Federal government was completely transformed, and the long hand of the state could reach out to protect Citizens of the several states from their own governments. This view took time to assimilate – but when in the 1950s and 1960s, the US Supreme Court had proclaimed its various Civil Rights decisions; it was fulfilling the purpose of the 14th amendment, as it was originally conceived.

Thus, although the first amendment literally says 'Congress shall make no law…' the Court is correct in interpreting it as "The US Government or any State government or any agent thereof"…

But what does "Freedom of Speech" means, surely that is straight forward isn't it? Well, actually, no, it isn't:

(3) The all elusive "Freedom of Speech":
Even Barry Krusch acknowledges that the words "speech" in the 1st amendment requires clarifications. The fatal flaw of his entire book can be summarized by quoting one line out of his critique: "Luckily," Krusch tells us "there is a broad societal consensus that these words should be seen broadly"

There is the rub! What does 'broadly' mean? Well, the broadest possible interpretation would be, roughly, something like "Communication of information via any media whether book, comic book, newspaper, radio, television, CB radio, walkie talkie, Braille, sign language, [etc]… ". But what does it mean?

Suppose I want to 'Communicate information' by putting the face of Benjamin Franklin on green pieces of paper and handing them to other people. If Congress wants to suppress my right to hang out green pieces of paper with faces of dead American statesmen on them, isn't it abridging my right for freedom of Speech, based?

But then what happens to Congress's authority to "coin money… [and] To provide for the Punishment of counterfeiting"? Recall that the first amendment amends the constitution – that is, anything in it that clashed with the 1st amendment should be out of the water? Did Madison change his mind and decide that he did not want to give Congress the right to coin money and punish counterfeits?

Now, suppose I like Krusch's book so much I want to sell it to people all over the US. Krusch may object, but then, if he can sue me and prevent me from selling it, surely Congress is, via Krusch, abridging my right of free speech, interpreted broadly?

But… the Constitution allows Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Is that out of the window, too?

And what about if I want to lie under oath, or cheat on my tax forms, or tell the police that I don't know where the bunk robber went? When an FBI tells me to "freeze" is he not a paid agent of congress violating my freedom speech?

The point should be clear enough; Interpret "Freedom of Speech" broadly enough, and government is rendered impotent. Some form of "Speech" cannot be protected under the 1st amendment. Some forms of expressions are "protected speech" others are not – telling which is which the hard part is.

The US Supreme Court will probably keep wrestling with determining what Speech is protected and what is not. Like Krusch, I hope it will interpret "speech" broadly. But whether I agree with the decisions of the Court, at least it correctly recognizes the problem.


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