THE INABILITY of Americans to think clearly about the First Amendment is a great sadness. The inability of judges to do so is a calamity.
The amendment is just 45 words long. "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." Astonishing what the federal judiciary has been able to find in a text so short.
If an obnoxious rabble-rouser wants to burn a US flag in front of City Hall, town officials may not stop him. That's in the First Amendment, said the Supreme Court in Texas v. Johnson. If some religious citizens want to display a Nativity scene in front of the same City Hall at Christmastime, town officials must stop them. That, the Supreme Court said in County of Allegheny v. ACLU, is in the First Amendment, too.
As interpreted by the judges, the First Amendment protects 1-900 phone-sex services -- but forbids a sales-tax exemption for Bibles. It says privately owned TV stations can be prevented from running ads for cigarettes -- but compels publicly owned mass transit systems to accept lewd condom ads. It bans public schools from posting the Ten Commandments in classrooms -- but requires cable-TV access channels to post recruitment ads for the American Nazi Party.
Are results like these what the framers of the Bill of Rights had in mind?
They are not. But for more than three decades, what the framers had in mind has been irrelevant to the black-robed activists on the federal bench, and to the agenda-driven litigants who bring lawsuits before them. In case after case, judges have refused to give the First Amendment the straightforward meaning intended by those who ratified it. They have emptied the text of its original understanding and replaced it with the values of the intellectual and cultural class they belong to -- values never shared by most Americans. No wonder the courts' First Amendment rulings so often feel like assaults on mainstream sensibilities.
Of the ways in which the First Amendment has been mangled, two stand out.
(1) As understood by its framers, the Establishment Clause -- "make no law respecting an establishment of religion" -- bans the government from designating an official church or showing favoritism to a particular faith. But it has been turned into something wholly different: a doctrine of hostility toward religion and religious symbols.
"Had the Establishment Clause been read as its language and history show it should have been," writes constitutional scholar Robert Bork in the current issue of Commentary, "the place of religion in American life would be very different from what it now is. But in modern times, the Supreme Court has developed a severe aversion to connections between government and religion." Against all logic, against even the wording of the amendment itself, the court has raised militant secularism to the level of a constitutional ideal.
Three years ago, the Supreme Court ruled that a nonsectarian prayer offered by a rabbi at a public school graduation violated the First Amendment. Imagine! The Constitution of the United States forbids a man of the cloth to stand up and say, "Dear God, please bless these graduates." The Founders of the Republic, who invoked God in the Declaration of Independence and hired chaplains for the First Congress, would have regarded such an interpretation as pernicious and nonsensical. So do most Americans today.
(2) Even more outlandish is the modern Supreme Court's insistence that the First Amendment guarantee of free speech encompasses all manner of behavior, too.
The framers were precise, articulate men. When they wrote "speech," they meant speech. Not action. Not "expressive conduct." Not "symbolic speech." The First Amendment enshrines the core American freedom to speak one's mind. It is about words, not deeds.
Stripping at a peep show, donning Nazi uniforms and goosestepping before concentration-camp survivors, torching Old Glory, setting a cross on fire in a black family's yard -- these have nothing to do with speech. Yet each of them has been held by the high court to be shielded by the First Amendment from legislative restriction.
Maybe flag-burning ought to be legal. Maybe bans on nude dancing are foolish prudery. Maybe not. The point is that the Constitution has nothing to say about these matters one way or the other. Judges were never supposed to decide them. They were to be left up to each community to work out for itself, through the officials it elected to make the rules it would live by.
But with the judicial twisting of the First Amendment, communities have been stripped of their right to make rules, enforce standards, and encourage faith. In the name of a Constitution that was written "to promote the general welfare . . . and secure the blessings of liberty," religion is now punished and laws for maintaining civilized and restrained behavior struck down.
"The result of all this," writes Bork, "is an increasingly vulgar and offensive moral and aesthetic environment, and . . . an increasingly less moral, less happy, and more dangerous society."
The First Amendment is in a mess. In consequence, so are we.
(Jeff Jacoby is a columnist for The Boston Globe.)
No freedom to mangle the First Amendment
by Jeff Jacoby
The Boston Globe
January 31, 1995
https://jeffjacoby.com/4083/no-freedom-to-mangle-the-first-amendment
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