THE FIRST AMENDMENT

(AN OPINION)

(Referenced to the Freedom of Speech)

By Bob Hegamin February 15, 1999

From our Declaration of Independence, in relevant part:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.

On July 4, 1776, the Continental Congress approved the Declaration of Independence, thus severing its ties with Great Britain. The pronouncement was followed by a litany of charges lodged against their king, George III, and their "British brethren". Some of the complaints were subsequently included and addressed explicitly in the U.S. Constitution which became the law of the land on July 2, 1788.

The Bill of Rights followed on December 15, 1791, the First Amendment of which states that:

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 the redress of grievance.

In the Declaration of Independence, the colonists had proclaimed to the world that "life, liberty, and the pursuit of happiness" are rights -- inherent and non-transferable. In order to help assure the perpetuity of those rights in the new nation, the first of the amendments to the Constitution prohibits "Congress", that is, the federal government from interfering with the individual's free exercise of religion, speech, and the ability to assemble peaceably. Further, it prohibits government from infringing on the rights of a free press and grants every individual the right "to petition the government for a redress of grievances". It is this First Amendment that is most cited by the people of this nation today, especially as it relates to the freedom of speech and more broadly, to the freedom of expression.

The Constitution also underwrote the individual's rights through state constitutions and legislatures, and guaranteed it more explicitly on July 28. 1868 with the Fourteenth Amendment. In relevant part:

… 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; …

Although using the same U.S. Constitution as a guide, state statutes nevertheless evolved with diverse characteristics.

The clamor for more perceived rights, citing "First Amendment Rights" or more narrowly by "Freedom of Speech", is getting louder and more incessant. In its simplest form, it goes somewhat like this: “I can say and do what I want to, where I want to, and when I want to."

Are they the words of a people living in a civil and stable society asserting their right to free speech? … or … the words of a people living in a chaotic and lawless society?

THE REPUBLIC'S FOUNDATION

The combination of the Declaration of Independence and the U.S. Constitution had established a very simple concept for the new nation: --- The federal government would stay out of the people's way while they governed themselves. But who, then, would govern?

Under Article IV, Section 4 of the U.S. Constitution, "The United States shall guarantee to every State in this Union a republican form of government …." The people would govern themselves through elected representatives who, in turn, would legitimize the people's laws and standards of conduct for their communities, so long as they did not deprive any person of "life, liberty, and the pursuit of happiness".

In addition, the Preamble to the U.S. Constitution, also states in part: "We the people of the United States, in order to ..… insure domestic tranquility, …" Obviously, the framers of the Constitution had envisioned a civilized society -- free from chaos. To that end, they had mandated that elected officials maintain order through constitutional law codified in ethical statutes and high standards of personal behavior. And now, more than ever, it is imperative that interpretations of the law be based strictly on the intent of the Constitution "to insure domestic tranquility". The U.S. and state Supreme Courts must simply learn how to distinguish what constitutes societal order -- a Constitutional right -- and chaos.

The Tenth Amendment [December 15, 1791] complementing the First Amendment, explicitly states that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

"... Or to the people." Strangely, it is government today - at all levels - which very convincingly reminds people that they do not have the authority, ability, or the common sense to use the Constitution. Yet, it is the collective power of the people, with or without the approval of elected officials, which establishes codes of conduct and speech -- so long as they don't interfere with the individual's "life, liberty, and the pursuit of happiness." However, it is the responsibility of representatives to keep the codes constitutional.

THE CONSTITUTION -- FORMAL OR INFORMAL?

In 1965, the author of the following must have written the following with pride.

The United States Constitution has become the oldest written constitution in the world. …. This is probably so because of the soundness of its original conception and because of the relative stability of American society. (The American Political Process Charles R Adrian and Charles Press McGraw - Hill Book Company 1965)

It is certainly easy to understand why Americans in the early years of this nation were proud of the Constitution which had evolved and been extolled in their time as the epitome of all governance – anywhere and in any period in the history of mankind. From its beginning, and for a great part of the two hundred plus years of its existence, the general population had readily understood and lived under the Constitution including its amendments. Now, by default of the judicial system, the people of these United States can no longer rely on their national constitution to guide them in their lives and their politics.

“Time” has caught up with the U.S. Constitution. What happened to the original document can again best be understood from the following in The American Political Process:

“The American Constitution is ..... a written document that ..... is by no means all written. More of it is to be found in the opinions of the United States Supreme Court than in the document called the Constitution of the United States, even if we include the amendments. There is thus an informal constitution as well as the formal document.” (emphases added)

After having survived most of its first two hundred years because of the “soundness of its original conception”, the opinions of the U.S. Supreme Court have finally interfered with the Constitution, precipitating the erosion of the “relative stability of American society.”

CONSTITUTIONAL EXCEPTIONS

The U.S. Constitution was devised by a group of brilliant individuals, whose personal experiences, education, and purpose set up this nation with a constitutional government. With principles stated in simple and broad terms, it has been more than just a permanent and inviolable guide for good government, having established for all time that the individual has a right to "life, liberty, and the pursuit of happiness." Unfortunately, in just a little over one hundred years, the Constitution came under attack and continues to be undermined. The following two cases are cited as examples.

Laws limit freedom of speech in wartime Washington D.C. May 16, 1918

"Beware that no faction of disloyal intrigue break the harmony or embarrass the spirit of our people," President Wilson warned in his 1916 inaugural address. A year into the war, and those words seem almost prophetic. Congress today added the Sedition Act to the federal government's arsenal, which already has the Espionage and Sabotage Acts. Now dissenters can be put in jail for criticizing the flag, government, draft or arms production. The law protects these institutions from 'profane, violent, scurrilous, contemptuous, slurring, or abusive language.' ……..But, as John Dewey objects, 'What shall it profit us to defeat the Prussians if we prussianize our own selves?' (Chronicle of America 1997 DK Publishing, Inc., 95 Madison Avenue, New York, New York 10016)

And again, twenty-four years later, at the outset of World War II, on Feb.19, 1942 President Franklin D. Roosevelt signed Executive Order 9066, which interned Americans of Japanese ancestry living on the West Coast. Inexcusably, Executive Order 9066 was a brazen violation of the Constitution.

Setting aside personal feelings and in retrospect, the U.S. Supreme Court had failed in its responsibility and authority - as the final arbiter - to preserve the Constitution. Today, the high courts at both the Federal and state levels continue to fail in their responsibilities to the people since those principles on which the Freedom of Speech was based have apparently been replaced with short-lived, nondescript, superficial issues. The most recent and obvious example is the government's condoning of "political correctness" at the urging of special interest groups. The right to utilize the Freedom of Speech notwithstanding, many are now unconstitutionally calling on state and local governments to publicly and politically demonize and ostracize those who openly oppose their own political and social philosophies.

CONCLUSION

The nation has found itself in a quandary. The general and correct perception by the people is that neither the federal nor state governments can abridge the free speech of the individual. But, under the Tenth Amendment", the "people" are still free to control speech in society to "insure domestic tranquility."

Americans currently have little confidence in “getting” any justice from the U.S. Constitution or from state constitutions, resigned to interpretations based on the political leanings of justices and judges. To the average person, decisions from the courts today are just simply too “arbitrary and capricious."

The choice belongs to the people. They can either continue to allow the country to be taken on a "slippery path" to oblivion or acknowledge the grave dangers it faces and put a halt to chaos. They must elect officials who have only the interest of their own society and the nation foremost on their agenda. An elected official, endorsed by special interests, can never truly be a representative of the people.