Thursday, February 13, 2014

The First Amendment

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

Sounds simple - "Congress shall make no law..."  Congress shall not impede our right to speak, assemble, worship or petition the government.  What could be controversial about that?  Well, as I put forth a couple blog entries ago, is there in fact an absolute right to any of these things?  Can I truly speak, write, assemble or worship without restriction?  What, if any, restrictions can - or should - the government put on these rights?  And if the government can restrict them, can we truly call them "rights"?  Difficult questions, my friends...

Of course, the answer is no, there is not in our country an absolute right to any of these.  Most famously, this does not give one the right to shout "Fire!" in a crowded theater.  Generally speaking, one's right to do x ends when it infringes on another person's rights.  Your right to shout "Fire!" is subordinate to my right not to be trampled in a panic.  My freedom to speak my mind ends when it truly injures (not merely offends or insults) you, which is why we have libel, slander and perjury laws, in effect codifying the "Thou shalt not bear false witness..." edict of Ten Commandments fame.  We do have what most would consider "reasonable restrictions" on these right, but what is "reasonable"?  Is it reasonable to remove certain books from public libraries?  How about school libraries?  How deep can the government penetrate into my own affairs for the "common good"?  Excellent and difficult questions, all.

We could bring up a million case studies about various aspects of the First Amendment, so let's narrow our focus and look at a current event and talk about how the First Amendment applies.  There is a pending Supreme Court case involving the retail chain Hobby Lobby.  The store has filed suit under the First Amendment challenging the Affordable Care Act ("Obamacare") mandate to provide contraception coverage under their employee insurance plan.  The owners of the company maintain it is a violation of their religious beliefs to do so, as artificial contraception is counter to their faith.  The government, on the other hand, says that a corporation is not a person, so the First Amendment protections don't apply, especially to a secular business.  (By way of comparison, the Supreme Court just issued an injunction exempting an order of Catholic nuns from the mandate.  One might ask why the government thinks nuns would need contraception in the first place, but that's not really the point...).  Churches and houses of worship are exempt from the mandate,  but businesses affiliated with them are not - a Catholic church is exempt but a Catholic hospital is not, for instance.  So the question is - at what point does one's freedom of religion stop?  At the door to the business?  When you step outside your front door?  When you hire people who may be of a different faith background than you?  Or does it ever stop?

Again, we have certain restrictions on all of these rights - we can't yell fire in the theater as an expression of free speech; we can't hold human sacrifices as part of freedom of religion; we can't have a violent riot as freedom to assemble (though note that the amendment specifies "peaceably to assemble").

The First Amendment seems so very clearly written, but as with the Bible, the difficult part is in the interpretation.  Going through all the possible permutations of it can - and does - fill thousands of volumes of legal argument, theory and history.  How much can the government restrict these rights, and under what circumstances and to what end?  (These questions also apply to subsequent amendments and will be discussed there, as well.)  If there are to be restrictions placed on my right to speak my mind or practice my faith, what compelling reason must there be for doing so?  I would argue that there must be an actual threat of harm to another before restrictions can be enforced, not mere inconvenience or embarrassment or disagreement.

To take it a step further, can these freedoms be applied to new technologies that the founders (except maybe Ben Franklin) never dreamed of, like TV, radio, telephone and internet?  Clearly, we do accept that these new media are covered under the First Amendment.  No one would seriously claim that "freedom of the press" applies only to those who own and operate a physical movable-type Gutenberg-style printing press.  But with new technology always comes new issues.  Still, the Founders were wise enough to know that times and technologies would change and they wrote the Constitution in general enough terms to be durable for the long run, yet specific enough to be useful in everyday life.

Pure Genius.  Discuss.

Next up - The Second Amendment

Wednesday, February 12, 2014

An Educational Interlude

Happy New Year, Madisonians!  It's been entirely too long since my last entry.  Perhaps this severe winter weather has sapped my motivation, but it's time to crank it back up.  My last post was an introduction to the Constitutional Amendments, and I'll get to that next, but first, a pitch for further education.

I hope you've found this blog at least somewhat interesting and thought-provoking, but I also hope it's been educational.  Still, I'm no world-class expert on the Constitution, so I thought I'd bring some in to help you deepen your knowledge and appreciation of the Constitution.

I was the fortunate recipient of a couple of great gifts recently that I'd like to pass on to you.  My parents took an educational trip to Virginia a couple months ago and one of the stops was, of course, Montpelier, Madison's home.  The magazine they brought home for me included information on the Montpelier web site, which has a fantastic educational section.  They have free online courses you can take to further your Constitutional education (and why not learn from the master, right?).  For any of you who are teachers, these courses can earn you continuing education credits (a small fee is required to get the certificate).  You can access it here:

They also underwrite an excellent weekly radio show called "Your Weekly Constitutional" that you can access here:

I listen to it on podcast religiously and strongly recommend it.

Another fantastic online program is offered by Hillsdale College.  Their free online offerings include two courses on the Constitution, two History courses and a new one on Economics.  I've done the two Constitution courses and can recommend them with the greatest enthusiasm.  Their courses generally consist of around ten lectures by their professors (each about an hour or so video), lots of links for further study and quizzes to test your retention and comprehension.  Again, these courses are free (they will ask for a donation, but it isn't mandatory) and you can find them here:

Finally, my wonderful wife gave me an excellent book, "The Liberty Amendments", by Mark Levin.  Many of you may know Mr. Levin for his talk radio show.  He is also a lawyer who graduate summa cum laude and Phi Beta Kappa from Temple University and is President of the Landmark Legal Foundation.  His book deals with the out-of-control growth of the federal government - far beyond what the Framers could have imagined, or feared.  Whether you identify as Left, Right, or Center, I think the evidence for a far-too-large federal government is beyond question.  Levin proposes amendments to the Constitution to remedy much of what he identifies as the worst of the problems.  Again, you may agree or disagree with him, but his proposals are worth hearing and definitely worth discussing.  The Number One question I guess I would ask is: "If the government is so big and out of control and far exceeding its Constitutional mandates (that is to say, if the people who are supposedly representing us are far exceeding their Constitutional authority), how would more amendments really help?"  Normally, I'd say this kind of book isn't a "beach read", but I in fact read this while soaking up some sun on a Hawaii beach, so there you go...  I thought this book would be an appropriate recommendation as we begin to discuss the Amendments, starting in the next blog entry.  The web page for his book is here: