Free Expression

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Let me be begin by saying that I love fiercely the Constitution of the United States of America.  Hopefully, this doesn't make me a wild-eyed jingoist in your eyes.  Stay with me for a bit and I'll do my best to redeem myself.

When I was a boy in school a long, long time ago, one of the core subjects from 9th Grade onward was "Social Studies".  It covered the same topics that were taught as "Civics" in an earlier era, combined with a certain amount of the history of Western Civilization.  We spent a good deal of time studying the U.S. Constitution and discussed the structure of the government that it described.  Every child in that classroom, even poor students like myself, knew by the end of these lessons that our government consists of three branches: Executive, Legislative and Judicial.  We knew that the Legislative branch is composed of two chambers: the House of Representatives and the Senate; that the Judicial branch is headed by the Supreme Court; that the Executive branch is held by the President, Vice President and an appointed Cabinet.  We understood that the Constitution put specific controls in place so that no one branch of government can gain more than its share of the power, controls called "checks and balances".  Through all of the turmoil of wars, economic despairs, corruption, power grabbing and so on over the last 222 years, the Constitution survives as the final authority in our Nation and we young Americans were inspired to be proud of this fact.

The Founding Fathers built into the Constitution the provision for change by means of Amendments.  They deliberately made this requirements steep: three-fourths of the states must approve in order for an Amendment to be ratified.  Although over 10,000 amendments have been proposed since 1789, only 27 have survived the process.

The first Amendments were introduced to Congress by James Madison in 1789, barely two years after the Constitution was adopted by the States.  The ten articles that we now know as the "Bill of Rights" were ratified in December of 1791.  It's important to note that the Bill of Rights does not tell us what we have the right to do — it states very clearly what the government has no right to do to us.

It is the first of these Amendments that I'd like to discuss.   It consists of 45 common words, yet it rings with a power that has few peers in the English language.  Scroll up and read it a few times.  Consider how much ground those words cover.  Consider also how greatly influenced they must have been by the recent — and poignant — memory of the tyrannical rule of an insane and paranoid monarch who punished his critics with torture and death.  Although there have been many attempts to re-interpret the First Amendment throughout history, as long as this Union lasts, we will always have the words of the Founders to use as a touchstone.  Is this what they meant?  How would they have decided in this particular case?

And yet, the language of the First Amendment should not be interpreted to mean that you can say whatever you like.  In fact, the purpose of the First Amendment is to forbid the government from silencing speech that you hate.  Does that set you back?  Why in the world would the architects of our system want that?  It is a great credit to the breadth of their vision that they could write these words from the perspective of the governors knowing what amazing filth and bile might at some point be spewed upon them by the governed.  But they knew that a government that was just and strong could weather even the most poisonous criticism, that its authority would not be eroded by harsh words but rather strengthened by acknowledging the right of its critics to speak freely.  I find the wisdom of this to be breathtaking.

Far from being an artifact of a bygone era, our First Amendment is being invoked continually as we move into the uncharted waters of the Digital Age and deeper in to seemingly irreconcilable partisanship from our roots to our top branches.  We have recently had to consider whether what is deemed to be "hate speech" should be protected and the old issue of what should be prohibited as obscenity has surfaced again,  As I write, the Supreme Court is deciding a case that could have profound repercussions within our system of electoral politics: should corporate monetary contributions to political advertising be protected as free expression?  The decision may well overturn a century or more of belief that it should not.  We shall see.

The next time you hear something that makes your blood boil, I hope you'll pause for a moment and give thanks to the wise elders who made it possible for such utter clap-trap to be allowed to see the light of day.  You never can tell when you'll need to utter some clap-trap yourself . . .

All the best,

Mark