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The Reach of the First Amendment

It is times and issues like this where I feel I’m in a fairy tale where I point out that the emperor is wearing no clothes, and a nanny will shush me with, "Hush, little boy, everybody else thinks the emperor is wearing clothes, so that is the reality you must deal with!"

I see you’re in an uproar that Steve Chapman is supporting the First Amendment rights of the radical professor in Florida. From what I gather, you’re taking the position that we (meaning Mr. Chapman) are being foolish for using a principle (free speech) to back up some idiotic and possibly dangerous professor. You’ve taken the time honored conservative position that a person can take principles too far. John Derbyshire makes the same case recently in Minoritarianism. I’ve also found a neat quote that fits the bill. I’ve been hopping around The Portable Conservative Reader from time to time, and I’ve finally hopped to the introduction. Russell Kirk wrote, "Conservatives have believed, following Burke, that general principles always must be tempered, in any particular circumstances, by what Burke called expedience, or prudence; for particular circumstances vary infinitely, and every nation must observe its own traditions and historical experience — which should take precedence over universal notions drawn up in some quiet study."

This is all okay, but I doubt modern liberals could see the sense of what Russell Kirk wrote. I have a different take on this. I argue that the First Amendment has no business telling a public university what it can or cannot do. Yes, the First Amendment is supposed to be a limitation on what government can do (I wonder how many people remember that limitation-on-government bit? Bill Mahar had no 1st amendment protection preventing him from getting fired by ABC because of his stupid terrorist comments, contrary to the opinion of some commentators). But I often wonder if people are reading the same first amendment that I am. Here it is to refresh everyone’s memory:

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.

Now let’s see… as far as I know, universities are not members of Congress and they are not a branch of federal government. As far as I can tell, firing a professor is not the same as writing a law. So how is it that the emperor is wearing clothes?

Well I can take you part of the way, but I’m afraid that the emanations and penumbras and hand waving are a bit too rich for me. By an interpretation of the 14th amendment, the courts decided that certain parts of the Bill of Rights were applicable to the states. Through Incorporation, the privileges and immunities clause was interpreted to mean that the Bill of Rights applies to the states. Of course, there is dispute over whether the writers of the 14th actually intended such a meaning, but judges aren’t too keen ’bout that when they’re ‘terpretin’. The law means what judges say it means. Just read Animal Farm; you’ll understand.

Of course, our own Professor J. makes a strong case that the Second Amendment actually addresses a personal liberty and that it was intended to apply to both the federal government and state governments. But somehow how our keen-eyed justices overlooked that one when they were incorporating. They must have been too busy ‘terpretin’.

While I’m on this ‘terpretin’ kick, they’ve expanded "freedom of speech" and "freedom of the press" to mean freedom of expression. Somehow freedom of expression doesn’t apply when I want to sock someone in the nose, but strip dancing does apply. Now that state courts can jump on the bandwagon and ‘terpret the 1st, in a certain liberal states, it deemed to be very wise for zoning boards to zone for strip clubs in some out-of-the-way part of town lest some ingrate shouts, "help, help, I’m being repressed!" You see, some bright entrepreneur demanded that he be able to place his strip club near a residential area because his stripper’s freedom of expression was denied by the zoning board.

The funny thing is that Steve Chapman is on thin ice anyway. If the professor is a public employee, then Mr. Chapman should be made aware that the courts recognize that the government is allowed to restrict the political activities of its employees (Mr. Chapman bases his argument that it is a public university, if anyone wants to argue the university is independent, then I’ll fall back on the Mahar example). I don’t know how far this goes (and I don’t think the courts do either), I just know that the government can do this. I know that as a former boomer (ballistic submarine sea-going dude), I could have gotten myself into big trouble if I had joined the Greenpeace anti-nuke protest in uniform outside the main gate.

But I’m going to move ahead anyway, because there’s a whole lot of ‘terpretin’ to cover.

While they were expanding expression to cover pornography, they’ve been busy denying places where religious expression can occur due to the principle of separation of church and state. I admit my eyes are sort of weak, but I think I would be able to see that clause in the amendment. Before anyone gets his dander up, I support the establishment clause. I don’t want to see the Episcopal Church established as the official church of the United States. Nor do I want to see any other church made official. But that’s a far cry from saying that a teacher, a local town employee, shouldn’t be allowed to say that she believes in God while in the classroom when the vast majority of that community also believes in a supreme being (re-read John Derbyshire if you’ve missed my point here). I know that some might still be obstinate, so consider this: can an adult mention God in a speech at an official function? Well, a newly minted adult was denied the right to speak of God for a valedictorian speech at a high school graduation. Yet President Bush was allowed to mention God during his inaugural address. I don’t see the difference that allows one and disallows the other. I do see the "prohibiting the free exercise thereof" clause of the 1st, but I guess them justices are still too busy ‘terpretin’ to notice. Congress is allowed to have a chaplain say a prayer at session openings, but I suppose the only way VMI will be allowed to pray is if Congress holds their sessions at VMI.

I’m a big believer in the "federal" of federal government. I favor a strict interpretation of federalism where state and local governments are autonomous in their local affairs. Frankly, that there is a federal Department of Education is stupid. There is absolutely no reason to move decisions beyond a local school board in the normal day to day operation of schools. This makes sense if you follow the principle of subsidiarity, where higher levels of social structure should avoid messing around with the lower levels of social structure. It also blends in nicely with the Russell Kirk quote above; the federal government should be allowed to stick to the high principles of freedom of speech and religion without getting its hands dirty over whether a town has zoning for strip bars or whether a teacher prays.

Is the country as a whole so absorbed in this freedom of speech principle that they can see no exceptions? No, not really. On the Right, there is support for censorship and a ban on flag burning. On the Left, there is overweening pride about support for freedom of expression. They seem to believe that if an artist is not given federal funds to place crucifixes in a jar of urine, then the artist has been denied free speech. Even given that pride, they would willingly stop "hate speech" and on college campuses (leftist indoctrination camps) are known for speech codes that are intolerant of any intolerance. Be careful not to offend anybody (anybody as defined by leftists — its okay to offend anyone with Western cultural sensibilities… they’re not anybodies I guess). The height of idiocy of political correctness was displayed when a Washington D.C. government employee was fired for saying "niggardly" just because it was phonetically similar to the dreaded n-word (interestingly, as a D.C. government employee, it is governed by laws established by Congress — in other words, no ‘terpretin’ the 14th necessary — but as far as I can remember, no one really stressed the 1st as applicable to the case).

But what I find very infuriating is the stampede on the Left for campaign finance reform led by the head McCainiac himself. They would love to prevent "special interest" groups from criticizing them with this incumbency protection act. Yes they are Congressmen, and "Congress shall make no law… 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." Apparently they’re too stupid to read the plain meaning of this amendment, or they’re willfully ignoring the Constitution. I favor the latter opinion.

I’ve had some fun picking on the judicial branch for its ‘terpretin’ but as the last example shows, it is not isolated to that branch of government. Indeed, if you go further back you see that there is a bunch of ‘terpretin’ goin’ on out there. We get the government we deserve. Most poignant in light of campaign finance reform is an excerpt in The Portable Conservative Reader of Henry Adams’ novel, Democracy. Senator Ratcliffe is asked, "what is to become of us if corruption is allowed to go unchecked."

"My reply," said Ratcliffe, "is that no representative government can long be much better or worse than the society it represents. Purify society and you purify the government. But try to purify the government artificially and you only aggravate the failure."

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