But the America outlined in the Constitution and the one we live in today is not even recognizable. And no, this wasn't started with Bush or Obama. Attacks on the liberty of private citizens in America started before the ink on the Constitution was even dry. It is a natural byproduct of living in a society. Some will seek to limit the liberty of all in order for a chance at economic or physical stability or safety. We, as humans, almost cannot help ourselves. Which is precisely why a document like the Constitution is so important, and it is so important we don't start believing these liberties 'outdated'. The Bill of Rights make up natural laws. They are rights that are granted to us simply by existing, that only evaporate when a government chooses to infringe on such rights.
But these rights are under constant attack. Governments, as they become further centralized, and therefore further removed from scrutiny of the people, have chipped away at these basic rights over and over and over again. The SCOTUS sometimes steps in to stop them, but as polarized as the Nation's most high court now is, legislating from the bench and twisting constitutionality to fit purposes still happens with far too much regularity.
Of course, it is not just the Bill of Rights that is attacked. Other amendments as well as even the powers of government have been misconstrued wildly. Who would have concluded that the 'commerce clause' of the Constitution would be used to allow the Federal Government to hold more power than the States on nearly every issue? Not the Founders. But in this piece, which will be divided into three parts, I want to primarily focus on the Bill of Rights, natural rights, and how they have been infringed by our own government with out own permission.
Amendment I: 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 to peaceably assemble, and to petition the government for a redress of grievances.
That is a loaded one. It is easy to see why it was the first established, and often considered most important of the Bill of Rights. Speech. Press, Religion. Assembly. These are the basics of a free society. Unfortunately, none of these has remained unscathed in any of the three branches of government.SPEECH: Modern interpretation of this 'freedom' is that free speech does not extend to libel or slander or incitement of violence. Well, libel and slander make sense, if it can be irrefutably proven. Committing libel or slander is a violation of someone else's rights and therefore not your right. But libel and slander do (and should) have a very specific and very difficult burden of proof. Very few libel or slander cases ever win. When they do, it is generally always a case of obvious violation.
Incitement of violence is tricky territory. What IS incitement of violence? If I say, 'I wish someone would kill Trump.' Am I inciting violence? What if I tell my friend, 'You should go kill Trump.' Is that? What if I say, 'Hey, kill Trump right now.' Without the threat of force (which is a crime by itself) am I inciting violence? And what is my responsibility to the crime if I do any one of these things?
But this is the tip of the iceberg on issues the SCOTUS has ruled on in regard to Free Speech. What about a citizen's right to speak out against government in time of war? What about a citizen's right to donate to a foreign government? or organization? What about the speech rights of public servants?
The SCOTUS, in general terms, has mostly been pretty pro-speech. This is one place where America really does outshine its contemporaries in the case of individual liberty. Even Canada's Supreme Court has denied speech rights for what it determines to be 'hate speech'. Ironically, if you can ban any unseemly speech you don't really need 'free speech' to begin with. No one is going to deny you the right to say things people want to hear.
However, there are some SCOTUS rulings that blurred the lines of free speech, giving the government more power than the Constitution outlines in repressing speech. In Schneck v United States (1919), the SCOTUS determined that anti-war activists in WWI did not have the right of free speech to avoid being drafted. This also lead to the 'Clear and Present Danger' test for speech. That is, that the United State Congress has the right to protect the nation from clear and present danger even if that means violating first amendment rights of citizens. Later Dennis v United States (1951) ruled that the government may step in and stop speech even before danger is present in order to protect citizens. This, of course, is a dangerous precedent. We still use 'Clear and Present Danger' as a measure for how far the government can restrict our free speech.
Today, the most egregious examples of state silencing of speech comes in publicly funded universities. The Foundation for Individual Rights in Education (FIRE) represents student's who have been penalized for their free expression in the classroom and on campus. In private schools, there is not much that can be done about such violations but publicizing them, but in the case of public schools, such violations can easily be attributed to a violation of First Amendment Rights.
PRESS: When I say that the government infringes on this right the least, I'm not saying that's a ringing endorsement. But our press is largely private and though certain politicians receive preferential treatment, that is a function of Journalistic bias, not government control or suppression.
That said, the government does dip it's fingers into the Press and it does limit certain access and publications. Most obviously, there is the case of government intimidation to reveal sources or bury stories. The Obama Administration has faced criticism for this very thing, although his is not the first nor will it be the last to do this.In general terms, the freedom of the Press (according to the SCOTUS) does not extend to revealing any information that could put citizens in danger. That means, top secret info, is mostly protected and therefore the press is not actually 'free'. The Freedom of the Press Foundation highlights many of these crimes against press that go unreported for obvious reasons.
We are only relatively 'more free' in the field of Press because most of the world press is horribly censored.
RELIGION: This is an interesting case where both sides of the discussion feel personally victimized by the infringement of this part of the First Amendment. Religious people believe that their rights to free association and religious practice have been violated by a government that forces them to do business with people they might not be comfortable with, religiously. On the other hand, secularists look at things like government sponsored religious imagery in school (The Pledge), government buildings (10 Commandments, etc), currency, and motivation for laws as a violation of the First Amendment's promise not to establish a religion.
There is no limit to politicians who wish to make laws based on their own religious understanding of reality. I'm not sure that can ever be changed. I'm also not sure it's a violation of the First Amendment. Your motivation for writing a law only matters if that law is unconstitutional, right? I might decide I want to pass a law to feed all the hungry children by Federal Decree based on my faith as a liberal Christian. My cause isn't automatically dismissed because my personal perspective is colored by my religious beliefs. But, if I want to use that religious belief to confiscate wealth and allocate it entirely to charity, like my religion might state, then I've written an unconstitutional law. See what I mean? So, religious politicians are not in violation, necessarily of the First Amendment. But some laws are. Like, anti-sodomy laws, or federal amendments to ban gay marriage. Both of those are Unconstitutional and based on the idea that Christian interpretation of morality is objectively true.
In the case of religious liberty, things get tricky. Because we are a society that does not condone discrimination, the concept of being legally allowed to discriminate on the basis of religious belief seems like a violation of someone else's right - which would negate your right to discriminate. But, in reality, this is only true of public institutions. Public institutions do not have the right to discriminate, but based on property law, why would a private business owner or person not have the right to discriminate if he or she so desired? And why are other private citizens entitled to shop at a store? There is no such right. This is all to say, why couldn't a Jewish bakery owner refuse to serve neo-Nazis? Why could a gay bakery owner not refuse to bake a cake for a gay conversion celebration? And does that logic not also apply to Christians refusing service to gay people? Do the neo-Nazis have a inherent right to Jewish baked goods? Do conversionists have a right to cakes from gay bakeries? Of course not.
Having the right to a religious belief means that, unless you are violating the rights of someone else, you have the right to practice your religion as you see fit. However, the SCOTUS even ruled that Native Americans, whose religion predates the United States, have no legal right to use of Peyote in religious ceremonies because it has arbitrarily been deemed an 'illegal substance'. The precedent this sets is obvious. If the government makes something illegal, it can easily restrict your free expression of religion. Which brings us to...
PEACEABLE ASSEMBLY: The right to assemble peaceably is one of the most difficult rights to violate, from an optics standpoint. When you send in guns to break up armless protestors, you never look good. You can even cause people to side more with protestors than before. That doesn't mean the government doesn't try. In the height of tension the government even kills people who are peacefully assembled (see: Kent State). And so, it is strange that this right, the most universally valued, is the one that is violated with, maybe, the most frequency and certainly most real life casualties.
Why were civil rights, anti-war, pro-communist peaceful protestors arrested if they have the right to peacefully assemble? Well, there are a few reasons. 1) There are always violent outliers. Peaceful movements, when they grow large enough, will attract people who wish to exploit that for their own agenda. Even one violent person gives the government all the legal margin they need to take an assembly down. 2) They are being arrested for various other offenses, like drug use, public intoxication, trespassing. In some cases, this is justified. If you are assembling on private property without permission, that's illegal, and should be. But let us not forget that Richard Nixon extended the war on pot almost entirely to lock up anti-war hippies since he couldn't get them on anything else. And let's also not forget that public intoxication is a 'made up' crime.
Currently one of the biggest violations to peaceable assembly is the concept of 'permits'. Permits are essentially a fee to practice your Constitutional right to assemble. You don't owe the government money in order to protest, but this has been made into law. You can do it, but you have to pay first and be subject to government red tape and bullshit that can deny your request for almost any reason.
Freedom of Association which goes along with this is also referenced in the above freedom of religion commentary. As free private citizens, we should have the natural right to refuse service or association with anyone for any reason. We do not have such a right if we own businesses.
PETITION FOR GRIEVANCES: This means that we, as private citizens, have the right to make complaints to and seek assistance from the government without having to fear retaliation. With the exception of isolated incidents, this right remains mostly intact. However, I would go on to speak about the special treatment the Government gets in such cases.
When the Government makes an error, sometimes an egregious error that affects lives, they should be held accountable. They should not be protected by special laws or considerations. When a DA's office clearly withholds exculpatory evidence that leads to a conviction for an innocent person, that Government should be held accountable the way any private citizen would be. Currently, they are not. Government gets legal special treatment all the time. While we might have the right to petition, we do not have the right to fair treatment in assessment after such a complaint is made. The burden of proof for the violated party is far higher than for the Government. Such a system is inherently unfair and violates the spirit of this part of the First Amendment.
As a practical matter, notice the language of the First Amendment. It reads, rephrased for ease, 'Congress shall make NO LAW ABRIDGING the right to...' That means, no law abridging. Basically, that means even speech that incites violence is constitutionally protected. That means even top secret info is fair game for the Press. That means smoking peyote or any religious practice that doesn't violate the rights of others is constitutionally protected. And it means that you don't need a permit to peaceably assemble in a public place. The end.
Stay tuned for parts 2 and 3...
No comments:
Post a Comment