The People's U.S. Constitution: Bill of Rights (Amendment I)
Posted: Tuesday, November 18, 2008
by Jeff Brown
Inner Projection
OK, The Bill of Rights or the first ten amendments (almost said the Ten Commandments there . . . Hmmmmm . . . those two phrases sound so much alike. Any connection? You be the judge) are important and of great interest to most Americans. Why? Well, they certainly preserve citizen's rights, but there's more to it than that. You have to remember, the Constitution was written by Americans, certainly, but for the people by a small group of elites who wrote behind closed doors. Not much was known about the document by the average Joe and Jane citizen while it was being written. And even though some of the framers believed that the Constitution is a bill of rights, the "people" still wanted to be sure that their best interest was taken into consideration. Remember, these new Americans had just won a hard-fought freedom and came from the Land of the Monarchs; they didn't want any more of their rights stomped on by powerful courts, dictators, or armies. Enough said.
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.
The five freedoms spoken of here- religion, speech, press, assembly, petition-enable the "people" to self-govern. As you know, of those amendments in the Bill of Rights, the breech of these freedoms is what you hear about the most and that's because they are at the top of the pecking order. Without these five freedoms, it would be difficult if not impossible for Americans to assert any other rights.
Here's an interesting point about the 1 st Amendment; see that first word? Congress? Key point; it is the federal government that is limited, not private parties. Your speech, for instance, will be protected in the public arena, not private. If you decide to say something to your boss or your college professor (except for state funded schools, of course), you are not protected by the 1 st Amendment.
Note that I said "federal government." It wasn't until the 14 th Amendment in 1897 that the states began to come under the Bill of Rights. There are those who believe that they can say and do as they please without repercussion; however, there may be no absolute. At times there have been those on the Supreme Court who were absolutists, such as Justice Hugo Black. Then again, other justices have been more open to interpretation. And as you know, this is not the first time we've heard of the "subjective" nature of the Court. But after all, they are human, yes?
The first freedom spoken of regards religion. The government cannot step in and establish a religion, as a national religion, such as The Church of England. No Church of America, therefore. Also, the government cannot interfere with the expression of religious beliefs. That all sounds fine and dandy, but if you read these two points carefully, and consider the subjective nature of the Court, you can see inherent problems.
But don't think that Americans because of the great liberties inherent in the Constitution and all that talk over the years of freedom this, freedom that, that we are any better than any other people when it comes to doing the right thing. We, like most humans, had to be taught how to behave. We are still learning. What do I mean?
Before the Constitution, and especially this 1 st Amendment, new Americans were, well, pretty much like the old English. The official religion in the New England colonies was the Puritan Church, and if you decided to sin or do something like not be a Puritan, you were persecuted . . . in the extreme. For example, Quakers were killed just for being Quakers... You could, of course, be killed for being a witch (and why have we never heard of male Wicca, or wizards, being burned at the stake? Yes, its sexual bias but that's another issue for another time), but did you know that if you sinned you'd get whipped or thrown in the stocks? Stripped to the waste, tarred and feathered, and dragged behind a wagon? Remember those movies The Crucible and The Scarlet Letter? Well, that's what I'm talking about. And the South was not full of good angels either. The established church in the southern colonies, The Church of England, was also not a protector of individual rights.
Interestingly enough, many negative issues in American history, like those mentioned above, are not common knowledge. Why? Well, conservatives say that if you focus on them that you're an America hater, as many have said about historian Howard Zinn. The liberals don't say much about hating America; they just try to get the truth out. Zinn along with Noam Chomsky have really run the keep-your-eyes-on-the-under-belly flag up the pole, to the chagrin of many a conservative. But are both parties wrong? Maybe there's a happy medium. Maybe, just maybe, America isn't perfect and we've made a few mistakes along the way. What's the problem with talking about these negatives? Or doing so without being called an America hater. Do you hate yourself, brother, sister, mother or father because they've made mistakes? I digress.
So maybe the colonists were not just fearful of the Smart Wise Guys but the common folk as well in obtaining individual rights. So just like the North were not sacrosanct and benevolent in regard to the slavery issue during the Civil War, early Americans were just like other humans who indulged as they deemed fit, unless, of course, limits were applied by a "law of the land."
Now let's get into another important issue, the phrase "separation of church and state." This phrase is NOT in the Constitution or, more specifically, in the 1 st Amendment. The Supreme Court may have used it, as they did in Everson vs. Board of Education (1947), but it was borrowed from Jefferson when he said in 1802 that the 1 st Amendment prohibited states from using religion in legislative concerns and that there should be "a wall of separation between church and state." In regards to this issues, there are two camps or opinions: Accomodationists and Separationists. Either you believe in the strict separation of church and state or you lean in the opposite direction. But there is a choice because of the lack of a specific statement of separation in the Constitution.
But the separation of church and state issue really is about the government not getting involved or sponsoring or advocating religion (one church over another, churches over non-religious groups, or churces in general), especially as regards the young who are more impressionable and open to the effects of proselytizing.
In public situations, especially if initiated by the individual, the Court has allowed prayer or religious meetings. For example, if students choose to pray before a game, they may do so. Here it is the student's choice not the schools. However, schools can't make opening prayers or graduation day prayers official. But prayers are allowed in daily legislative sessions because of the absence of children and the belief that adults are less prone to peer pressure or proselytizing. In the case of a proposition that defines marriage, Congress deems it private in that those voting may be religious but there are certainly secular citizens who advocate marriage as being defined as that between a man and woman. Government is not advocating a choice but asking the people to make a decision.
The speech of Americans cannot be abridged. But here speech has often included not just speaking but art, literature, and advertising. But how does the Supreme Court define "free speech"? According to the Court, there are three types of speech: spoken, spoken along with action, and symbolic like destruction of draft card or the American flag. Certain freedoms of expressions may break laws or are secondary to Congressional concern, such as the religious rites that require the use of illegal drugs or the burning of a draft card where Congress is attempting to raise an army. However, there have been other occasions where symbolic acts have been allowed such as the burning of the American flag to express oneself. However, this symbol is regarded by most states in high standing and in 2002 all states agreed that they would ratify an amendment to outlaw the burning of the American flag.
But there are limits to free speech. There are certain types of speech that the 1 st Amendment doesn't protect, such as obscenity, defamation, fighting words, and speech that incites illegal action. However, there are always vague definitions that are open to interpretation, such as the Court's criteria for obscenity using vague phrases: "contemporary community standards," "whether the work depicts or describes, in a patently offensive way" and "lacks serious artistic, political, or scientific value." What is "standard"? What is "offensive?" What is "art"? Herein lies the challenge the Court has in making decisions.
When the Court makes a decision, it's often not as clear cut as one may think. Motive or why someone has done something is important. For example, in R.A.V. v. St. Paul (1992), the Court disallowed an ordinance that prohibited certain symbols "that arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender." When a white juvenile put a burning cross on a black family's lawn the Court said that he could do so because he couldn't be punished for the "content of his speech" but he could for arson. However, later the Court set a precedent in Wisconsin v. Mitchell (1993) that "assault" was not expressive conduct.
Some of the Court's decisions may appear odd or unjustified, but it is all in the effort to protect a citizen's Constitutional liberty to express. And the Court is just like any individual who is growing and struggling to get it right.
You've seen the movie Clear and Present Danger? Jack Ryan, played by Harrison Ford, is clearly in danger through most of the movie. No question, right? Congress used this phrase to cover illegal acts not protected under the 1 st Amendment. So if you're distributing pamphlets to encourage young men to avoid the draft-especially during war time-organizing to overthrow the government, or leading a KKK in verbally denouncing civil rights laws then you will not be protected under the 1 st Amendment.
Now don't think that youth in school are treated the same as adults in the public arena. Sorry kiddies. You may think it's cool to wear armbands to school protesting the war but according to the Supreme Court, you can't protest and cause a disturbance in school. You'll have to wait until after class to wear your arm bands. So if you are involved in school sponsored activities, such as student newspapers, class plays and such you'll have to wait to protest or speak more freely outside of the government sponsored classroom.
Here's a statement by Robyn Blummer that may shed some light on the issue of free speech, who's offending and who's judging: "Freedom of speech is not about good speech versus bad; it's about who holds the power to decide which is which."
It's the same old story
Everywhere I go,
I get slandered,
Libeled,
I hear words I never heard
In the Bible
According to Paul Simon's song "Keep the Customers Satisfied," the speaker has never heard such libelous, slanderous words in the Bible. Well, he's a rare exception, and unless you're living under a rock, you have too, especially in today's all too promiscuous society. However, how does the Court see spoken (slander) and written (libel) words that defame character?
Interestingly enough, the 1 st Amendment does not protect against defamation or hurting one's character through lies and deceit. The Court is actually more concerned here about the restrictions on free speech than they are about the good name of celebrities and public officials. It feels that you better have a damn good case and be able to prove slanderous or libelous allegations or if you don't you're going to put a big hurtin' on free speech. So you can say someone's not honest, incompetent, a lay about, but don't start yelling "Scumbag, I'm gonna kill you!" Thems is fightin' words. And especially don't say them or even lesser words like "Fascist" or "racketeer" to a public official like a cop. Here the Court says that such fighting words "have a direct tendency to cause acts of violence," especially, as I said above, if those words are thrown around officials who have direct connection or are in closer approximation to the Court than your average Joe or Jane citizen.
When it comes to the five liberties the freedom to assemble may seem the most trivial. The framers would agree. They almost left it out. And next to religion, speech, press, even petition, it's not on most people's minds because we do it so often with little worry about being able to do so. And regarding Constitutional law, it's not so much the assembling that's at issue but the when, where, how or that which may disturb the peace, such as blocking traffic, fights, riots, and so on.
And if you don't like what those assembling are doing, did you know you have a veto? Yes, it's called the heckler's veto. These vetoers provoke violence encouraging the police to get involved. Now don't get excited, it's not a Constitutional right and you may end up in jail. So use your veto wisely.
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