For Honors 251, Freedom of Expression®
Anthony Lewis writes on p. xiv of Freedom for the Thought That We Hate:
“When a constitutional provision has no discernible history, as is true of the First Amendment — no meaningful discussion by its authors of what they meant — how do judges begin to build on its words to decide concrete cases?
I would like us to answer and discuss this question via comments to this post. Feel free to post more than once, but please post at least once some of your thoughts on this question. I would also like us to respond and react to each other via the comments.
How are judges to determine for themselves what, for example, the 45 words of the First Amendment mean in specific circumstances, like prayer in public schools, student press freedoms, when and where people can protest? What should guide their interpretations? What approach should they take?
August 27, 2008 at 6:30 pm |
The foremost way that I can come up with to enact or interpret the first amendment in the case of prayer in public schools is to weigh the infringement upon one religion’s – we can use Christianity as an example – rights to prayer in schools versus the infringement on all of the other religions represented by children or people in public schools if prayer in public schools were allowed. Originally Christian prayer was the target of said prohibition. Am I wrong about that?
August 27, 2008 at 6:32 pm |
The 14 words of the First Amendment mean these things
1. That any government agency or entity is not allowed to finance, promote, or discourage religious practice.
2. That, with the exceptions of libel and slander, and specific exemptions for people in an official position sworn to secrecy, people are allowed to speak without any fear of government retalitation.
3. The government is not allowed to interfere with the free press; they may not threaten or punish the press, and may not pass legislation as to what the press may or may not say.
4. All nonviolent assembly is legal, though the assemblers may be required to get a permit; however, such a permit may never be refused on ideological grounds, or delayed for ideological grounds.
5. Everyone has a right to petition their government on any subject they please, at any time they please, without fearing any legal consequences.
These rights have not always been upheld in the past, but they are what the First Amendment truly means. They were generally not upheld either in times of war or great crisis, and the Supreme Court overwhelmingly overturned or invalidated these limitations after the end of the war or crisis. The fact the Supreme Court, in the past, has bowed to pressure from the public, or from the executive and legislative branches, or to its own misguided patriotism, invalidates the results of decision based on concerns of national security, a matter which is not within the court’s area of responsibility. Free speech is meant to be free.
August 27, 2008 at 7:01 pm |
In the matter of public school prayer; neither administrators or teachers, while on-duty, should be allowed to “lead the class in prayer”, since they are government-paid authority figures, making any prayer led or instigated by them mandatory in practice, even if not in theory, since the class is used to deferring to their authority. However, any student, of any denomination, should be allowed to speak as they please in matters of religion, provided that they do not disrupt the class they are in. Prayers by students, then, should be treated exactly as other speech in a classroom would be; tolerated at the teacher’s discretion, but stopped when they interrupt classes. The only case where prayer would violate the First Amendment would be when taxpayer dollars pay for an employee of the school to force or “encourage” students to ascribe to beliefs they do not possess.
August 28, 2008 at 1:39 am |
Judges should approach the constitution as a living document, in my opinion. America is not a stagnant country, so we can’t have a stagnant Constitution that never changes. As we grow and progress, our perspectives change and we have to keep in mind that everything is relative. Morality is relative not only for the individual, but also as time progresses. Judges should keep the interests of the minority, whether it be sexual, racial, religious or other, in mine first and foremost. The individual should be protected from the majority; you only need to look at the holocaust and slavery to see this. America is (or is supposed to be) “The Land of the Free”, so freedom should be maximized for everyone, regardless of whether or not it’s popular or viewed as “right” at the time. Specifically in regards to prayer in school, I have always interpreted this as school-sponsored prayer. For example, a teacher having a prayer of any religious affiliation at a podium at a rally would be unconstitutional at a public school. Students praying of their own accord on their own time would be acceptable, in my opinion. For the school to say they aren’t allowed to do so would be a violation of the first amendment. I also think things like the FCA to be given space at public schools are unconstitutional.
August 28, 2008 at 2:34 pm |
Getting back to the original question, “how do judges begin to build on its [the first amendment's] words to decide concrete cases?” I believe that I will agree with Clint in saying that it is molded by the times and the true moral structure of America at the time of question. Though the supreme court in essence is impartial they do still have an obligation to the populace in that they must work on at least some of the same moral grounding that makes up the populace’s opinion. Again, please correct me if I am wrong.
August 28, 2008 at 11:20 pm |
I’m afraid that I can’t agree that freedom of speech can be affected by popular opinion. After all, in order for popular opinion to change, a minority must be able to convince a majority, and they cannot do so if they cannot speak their minds. Any viewpoint, however unpopular, must be free from popular anger if we are to have a free society.
August 28, 2008 at 11:29 pm |
Actually, everything is not relative. Freedom of religion should be what we call “nonnegotiable”. It is an absolute moral truth that no man should have the authority to tell another man how to worship, or not worship, in the manner of his choosing. Your right to say “everything is relative” is protected by the moral absolute of freedom of speech. I don’t think everything is relative, but even if I get enough people to agree with me, you can still defend moral relativism with perfect safety, protected by the First Amendment.
The individual should be protected from the majority. For this to happen, each person must possess complete freedom to speak or worship as they please. These rights are not relative,.
You are going at the matter of the FCA in the wrong way. Rather than banning the FCA, schools should allow any religious group(or non-religious group) to use the same facilities as the FCA. You can make everything fair by removing everyone, or you can make it fair by allowing everyone. I prefer the second approach.
Also, you contradict yourself. You say “everything is relative”, but you clearly think that the protection of the individual and the increase of freedom are objectively good, regardless of popular opinion. You cannot logically defend moral relativism and absolute principles such as freedom and individual rights at the same time.
August 29, 2008 at 10:15 am |
OK, Dylan, thanks for your views.
Let’s focus, however, on the questions in the original post and not on point-counterpoint in the comments. It’s not constructive. Not everyone is ready to debate these points, and we’re not ready as a class yet to do this, either. Your last post is too argumentative and, thus, counterproductive to healthy discussion and the introduction of ideas.
Think constructive — building up — not tearing down.
August 30, 2008 at 12:51 pm |
I agree with Clint in that I think that the Supreme Court must approach the Constitution as a living document. WIthout the freedom to do so, we as a country might never have moved past some of the initial interpretations of the Constitution that plagued America after it was ratified. The tendency of the public to view the Constitution as such, though, might be considered a fairly new development. After all, the reason the Bill of Rights was created in the first place was to placate critics of the Constitution and the strong central government that it created. People didn’t want the government to be able to infringe on personal freedoms, so fundamental freedoms were added en masse almost immediately.
I think there is a point at which one can be too loose in the interpretation of the Constitution, however. After all, is it fair to say that a judge citing a small portion of the Preamble as justification for a particular position the Court has taken is a fair interpretation of the Constitution? Granted, it would depend on what portion or truth he was attempting to use, but I think we would all agree that this is a weak position for the justices to put themselves in. Also, the Court must be careful not to rule on a subject solely on the basis of the “spirit” of the Constitution. I guess what I’m trying to say is that while I think the Constitution should definitely be interpreted in the context of what is happening socially in our country, I think the Constitution and the text specifically written within it should be the basis of decisions. After all, it is the foundation of our government.
August 31, 2008 at 2:24 pm |
Yes, good. Let’s focus on the main question: What kind of approach should judges take when attempting to interpret a very old document to resolve questions in 2008? What philosophy or approach or mode of interpretation should judges use or adopt when trying to resolve constitutional tensions (death matches I called them in class)?
I’ll give you a very specific example: USSC justice Antonin Scalia favors an approach called originalism, though Justice Scalia resists this and all labels. His approach is to learn as best he can what the authors of the document meant or intended, then to attempt to fulfill that intent in the contemporary circumstances. As we discussed in class, that’s particularly difficult with the First Amendment because there simply isn’t any recorded discussion of what the First is supposed to have meant in 1791 when it was ratified.
This discussion will prepare us well for our time with Dr. Papazian next Monday.
August 31, 2008 at 3:36 pm |
Supreme Court Justices are essentially sovereign in their roles in our nation, at least, as close to sovereign as our government will allow. They are appointed, not elected by the populace, and they are never up for election, so the public does not truly have much weight in their minds. Of course, the upside there is that they are not affected by a sudden whim of the public that may be popular for a moment, or give benefits to the rich and powerful. Even the media does not hold much power against the justices individually or as a whole. Though they do not have the power to enforce their decrees by creating laws (which would give them absolute power), their decisions are not checked by any other person or branch of government.
This is the most un-democratic division of the U.S. government.
Except we all must remember that this way, they can see in a way that no one else can. They do not always try to please the most amount of people, but are responsible to the Constitution, and no one, or no party, else. It is their duty to interpret the Constitution objectively as it relates to life today, making it a “living document” as Clint said. They do not have the responsibility, nor should they, to create new laws or make decisions by way of their own personal beliefs. They should look past even their own values or religious viewpoints and look at matters in terms of the Constitution.
Some may argue that without activist/loose constructionist judges, our laws could not adapt and evolve as times change. Yet even though our nation and the Constitution change according to the present times (as it should, in order to endure as our framework for government), this document outlines the both unstated and clearly described intentions that ought to, in alliance with past Supreme Court judgments, be used solely in making decisions.
September 1, 2008 at 4:26 pm |
As far as what kind of approach justices should take when interpreting the first amendment, or any part of the Constitution, I think they should take more of a balanced approach between originalism and an interpretation completely derived from a modern context. I think that there are some fundamental truths and ideas that have to remain consistent throughout reinterpretations, and some cases where the constitution should be read as hard and fast rules. When it says congress should make no law, then congress should make no law. There is room for an evolving interpretation based on the contexts of modern society. Society changes, and the Constitution has to change with it to some degree. Both viewpoints in the Supreme Court are good to try and get a good mix of the two to find some middle ground.
September 1, 2008 at 4:28 pm |
I agree with Andrea in that judges should look past their own beliefs when deciding a case. Through analyzing not only the 14 words of the First Amendment, but the context of the entire Constitution, judges may find that their views may not be supported by the Constitution.
When deciding a case, judges must consider the First Amendment as it relates to the rest of the constitution. There may be underlying issues that can be addressed by other parts of the document. Also, they may consider previous similar cases to determine how prior judges interpreted the Constitution. However, they should not be bound to make a similar decision. As times change, the ideals of Americans and humanity in general progress; therefore, a ruling from 100 years ago may be seen differently today. The Constitution is vague enough that people of different generations may see different things in it, kind of like how different people can see different images in an ink blot.
September 1, 2008 at 10:05 pm |
i agree with Gordie in that a mix is the best approach. people always think things have to be one way or another but in reality a middle ground usually pleases more people and works better in the end.
to be more specific, i agree with Justice Scalia’s approach so long as the transition to contemporary circumstances does not stipulate the restriction of some people’s rights for the sake of other people’s. there were things considered normal in the time of our founding fathers that are now considered unacceptable. for example, slavery was a way of life, but was nonetheless wrong. this is where the adaptability of our constitution is productive. in other cases, the opposite is true. when the constitution is interpreted so loosely that harmless, self-sustaining clubs are banned for just because they are affiliated with a religion, it defeats the purpose of having the freedom of religion listed at all. like Andrea said, justices must look past their own values.
i also agree with Claire in that the rest of the constitution is a good source for context. likewise, historical context can be used to determine what the constitution is or is not. it is not a document through which a person/group/belief system would gain command over all others since one of the predominant issues of the time was getting out from under the oppression of a king. i’m sure other things could be inferred of it from this perspective though i lack the knowledge to do so.
i hope that wasn’t as redundant/limited as it felt
September 1, 2008 at 10:36 pm |
With regards to interpreting the Constitution, I believe the judges must strive to uphold the original meaning and themes of the Constitution. Although, there may not be many solid, concrete examples of what the Founders exactly desired, I believe it is obvious they left a discernable path to follow not only by their written works but also by the lives they lived. Before America became an independent nation, it had suffered under the English rule of seditious libel, and for years they submitted to the king’s authority. However, eventually the Crown crossed colonial boundaries, and this ultimately sparked the War of Independence. This war was fought so that the colonies might have a right to govern their own lives. As a result, the Constitution was established so the populace might have freedom to express themselves in previously forbidden ways. The First Amendment states:“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.” In the past, the Constitution served as a reminder to Americans of founding principles, what they knew to be true. Now many Americans—representatives included––need to be taught those very same principles.
As a result, any policy that contradicts the explicit freedoms stated in the First Amendment must be abolished because when a republic prohibits the very freedoms explicitly stated in the Constitution, that nation is destined for downfall. If a republic fails to protect its peoples’ freedom, two of three things will take place: the nation will crumble and either Tocquville’s soft despotism will ensue or a tyranical regime will seize power. Humans crave stability and will sacrifice much to obtain it as is evidenced by many of the former Soviet nations. They were oppressed for 70 years, but when the USSR fell, they attempted to establish a “democratic” form of government. They failed miserably. I witnessed this first hand while living in one of the former Soviet states for seven years. Since they did not successfully establish a republic, the nation’s freedom and stablilty faltered immensely. Thus, judges should do all in their power to interpret the Constitution according to the author’s original intent and resist sacrificing educational truth on the idea-stifling altar of political correctness.
I agree with the “clear and present danger” ideology which states individuals may freely protest UNTIL such actions violate the security of the nation. There is a significant difference between peacefully demonstrating and violently enforcing one’s views. I have witnessed both and must remind the reader that when one opinion is violently enforced it destroys all other conflicting views. Since the Founding Fathers viewed both the situations described, I believe they desired us to utilized wisdom in upholding the Constitution. If we don’t properly manage our out-of-control judiciary, judges will assume the role of representatives in deciding public policies. In order to prevent this from occuring, the authors designed the Constitution to be sufficiently flexible to address each generation’s specific challenges. However, there are immovable truths that must be adhered to as well. The challenge is to incorporate the two in a manner that does not override or extinguish the other.
On a final note, I appreciate what Gordon and Beth have said as they were able to express my same opinions in a more concise manner.
September 2, 2008 at 9:40 am |
I will try and make this as concise as possible. My opinions on the interpretation is somewhat similar to that Beth, Gordie, and Alyssa.
The language in the Constitution is different from contemporary language. Therefore, the interpretation is flexible in terms of generational attitudes. Some judges may believe in a strict interpretation of the Constitution and others may not depending on their background. When I speak of background, I think of their personal family background and education including pre-law. Family backgrounds help build a sense of place in society and assist in finding one’s political view, which might not be true in all cases. You may think that all judges have similar forms of education; however, in terms of pre-law everyone has a unique path. For example if a judge who studied government as suppose to international studies will have different political outlooks.
I believe that judges do look at contemporary circumstances to build up on their methods of interpreting the Constitution. As Gordie mentions times changes society; therefore, the interpretation of the Constitution has to change to better accomadote people’s views and values.
I hope that was clear. Have an Awesome Day everyone!
September 2, 2008 at 1:43 pm |
I am actually quite intimidated to post here, because: 1) for I really have no idea what to say, for almost all of what I think has been stated already, and 2) I’m afraid Dylan or someone will start debating with me over what I say, and I’m not ready to do that. Plus, I feel like there is a snake in my head and it’s squeezing my brain, but I’ll try to post something that’s okay.
I agree with what Thushy says. I think the interpretation is flexible; it HAS to be flexible. Otherwise, it couldn’t hold and be useable now or in the future. And how judges interpret depends on their backgrounds growing up. Family really molds you into the person you become. Their education also affects how they see laws, but I believe their upbringing affects them more.
Sorry this is super short and just repeating what others have said. Maybe next time I won’t have such a killer headache.
September 2, 2008 at 1:45 pm |
I personally feel that there is not a solid enough definition or standard of interpretation for the judges to interpret these freedoms. This is what is so frightening about our legal system. What may be acceptable to one person via his own interpretation of the Constitution may not be acceptable to another. There is always going to be a slight interjection of the presiding person’s opinion despite any oath taken. As far as what the interpretation should be based on it makes the most sense that it any actions should be centered around what is best for the majority of people.
September 2, 2008 at 5:03 pm |
I agree with what Gordon says (and what others say) about a mixture or a balance of approaches. I think a certain degree of an Originalist approach is necessary. There are countless key elements that must be upheld to retain an American identity as well as stability. If we are not to look at the original meaning of the document we might as well write a new constitution. I think a Developmentalist approach — treating the constitution as a living, changing document — would offer the kind of flexibility required to achieve another kind of stability. I believe that if the government loses touch with the reality of the nature of their constituency there will undoubtedly be unrest. The governed society (which is constantly changing) should be the main reference for constitutional interpretation.
September 2, 2008 at 9:38 pm |
I believe that before taking any kind of approach, the Supreme Court should be familiar with the writings of our founding fathers and what they had to say about the Constitution – however limited and ambiguous that might be. I suppose this is what Lewis was touching on when he describes the Originalist approach. Understanding the original intention to the best of their ability allows the Supreme Court to approach it literally when appropriate and to approach it with a certain sense of flexibility. The Constitution is probably best viewed as a fluid document. While it has underlying fundamentals, those should be adapted to fit the world we live in today – not to make justify or excuse behaviors but to better the society in which we live. That being said, I do not believe that interpreting the Constitution in the context of today’s world should mean abandoning basic moral values and principles.
I like what Kelly said about the Developmentalist approach. I think that is why having the option to amend the Constitution is so important. It allows the document to change in order to maintain the stability of our law. As time passes, something may not be as relevant today as it was several years ago. In order to be stable, law must also be current. Albeit a slow process, having the flexibility to adapt law is just as important as having flexibility within the law.
September 2, 2008 at 10:10 pm |
If I had to describe my belief on the First, I would not call myself a Originalist, as Justice Scalia does, but would flatter myself with the title of an “absolutist”. Put simply, I cannot think of a time when restrictions of freedom of speech, petition, or religion have benefited America, and I can think of a great many times when such restrictions have hurt it a great deal. Even in times of crisis, the benefit of hindsight allows me to see that restricting freedom of speech, even during the Civil War or WWII, has never been essential and has always set a disturbing precedent.
For me, the First Amendment is simply a written version of a natural right. Natural rights can never be justly denied.
One thing I am sorry for is taking far too acromonious an approach to this class; I had Debate my senior year in high school, and I’m afraid that I treat this class too much like it. I’m sorry for adopting too aggressive a response to some posts, and I’ll try not to do it again.
September 2, 2008 at 10:31 pm |
Based on what I’ve read, when it comes to choosing between interpreting the Constitution as a living document or as an enduring document, it would seem to me that the logical viewpoint would be to interpret it as a living document. If what guides our social lives (our Constitution) and maintains order with as little chaos as possible does not evolve with the progression of time then we should not be advancing forward as a society. I am generally very uncomfortable with talking about anything within the realm of politics,law, or government, but I will not refuse to obtain knowledge of it, or at least what I can retain, which is why I’ve been avoiding this blog…
During my senior year of high school, I took a logic class where we learned different reasoning skills. While it’s obvious that culture,history, and education of a particular person all contribute to one’s judgment ( as they do with all aspects of our own lives) I am sure that a judge puts to use their own reasoning skills, because there can be a hundred versions of one statement to different people. Also when deciding on a case different methods of interpretation must be applied appropriately (Structural, ethical, historical, textual…)
September 3, 2008 at 1:13 am |
One thing I don’t think I’ve emphasized enough is that I don’t disagree with the idea that the Constitution is a living document. I just think that freedom of speech and religion are absolute rights, natural rights, which the Constitution does no more than codify. There are some rights government cannot revoke.
Those rights cannot be changed or revoked, for they are “rights” in the most literal sense; not matters of practicality decided by government, but statements of fact that contain their justification in themselves. The First Amendment, in a way, was nothing more than a further concrete guarantee by government not to enter an area where the Founders, with an extraordinarily rare sense of concord for such a diverse and contentious group, overwhelmingly agreed that government had no business being.
So, while there is always room for interpretation in specific cases, I think government should follow these guidelines.
1. If there is not a immediate, concrete, and important reason otherwise, individual rights automatically come first; that is, after all, what America is about.
2. The only time when individual rights can be easily set aside is when the individual in question has entered into a legal contract with full knowledge of what that contract means. If you join the military or become a lawyer, you can’t break your respective agreements with the government or with your client, since you chose to give up your rights.
3. If there IS an immediate, concrete, and important reason otherwise, it must be proved, beyond a reasonable doubt, that the speech, petition, or religious practice in question would DIRECTLY cause immediate, concrete harm to another party. If I order someone to kill a man, and he dies, I can’t claim “free speech” protects me. If I say something offensive to someone else’s beliefs, protest in an “objectional” manner, or practice beliefs that irritate others, I am absolutely protected. The person responsible for violence is the person who initiates violence, not the person exercising their legal rights.
Essentially, my legal theory comes down to banning death threats. All other speech is free. That’s what a free society means; one where the most insane, obnoxious, and hateful beliefs can be advocated openly without fear.
September 3, 2008 at 9:15 pm |
I am of the opinion that the Supreme Court should either get some integrity, or just shut down voluntarily whenever there is a war.
After all, all they did during the First and Second World Wars was sycophantically agree with whatever the executive and legislative said, and I really don’t see why the taxpayer should have to pay to keep the Court running if they’re only going to tell us what the other two branches already told us, only with a pathetic legal covering.
In addition, we would also save money since the Court would no longer have to make painfully obvious reversals of their earlier position, with some lame legal excuse to explain how the Constitution magically changed that allows them to totally reverse their position without admitting that they caved in to outside pressure the first time. Or, on the rare occasions they admit the truth, the humiliation of having the Court issue a formal or informal apology for providing a flimsy legal justification for actions they now admit went utterly against the Constitution, such as the Japanese internment.
It would be more honest to have the Court just close its doors in wartime and announce that they are going to let the other two branches run things, then spend their time judging whether they considered wartime lawas Constitutional. That way, when they emerged, they could promptly decide on the Constitutionality of all the legislation passed in their absence without needing to find a way to get around earlier legal positions taken for convenience. While I would honestly prefer that the Court be willing to actually rule on the basis of the Constitution, this would be a close second, since it allows the Court to be honest, and saves the taxpayers the expense of having to pay first for the Court helping the other branches violate the Constitution, then to pay for the Court reversing its wartime decisions. This really would be most convenient for all concerned.