In the December 2005 newsletter Eric Chevrevuil discussed the 1st Amendment and freedom of speech, as a freedom the U.S. Constitution was created to guarantee. The discussion indicates Eric, along with many Americans, doesn’t get it. The Constitution was created to place limits on government, not the citizenry. Take the 1st Amendment; “Congress shall make no law; or abridging the freedom of speech.” No confusion there. No allusion to kinds of speech, just speech. Yet, those like Eric, minority activist groups, and activist judges, revel in exactly that, lofty discussion about definitions, applications and interpretations of free speech.
Oliver Wendell Holms’ claim in 1919 that any speech is not free speech is in of itself contrary to the 1st Amendment. Of course, yelling “fire” in a crowded theater is an obvious rare example of unprotected speech due to the inherent danger caused by the immediate result of stampede. However, there are no inherent dangers in offensive speech and the questions posed by Eric make for nice debate but is irrelevant. The framers of the Constitution indulged in these debates and carefully chose the words in the Constitution to avoid confusion and multiple interpretations. What Eric and like minds seem not to realize is that offensive and unpopular speech is exactly what was being protected, in spite of the so called “French” saying, one’s freedom stops when it infringes on another’s.
Let’s be clear, the 1st Amendment protects the ignorant racist standing on the corner yelling “nigger” from government, not society. Society can take various lawful measures to punish unacceptable speech. Citizens can refuse to support businesses or interact with individuals that practice deplorable speech. Private business can abridge the freedom of speech and create policy defining acceptable and unacceptable speech. But government shall pass no laws that abridge the freedom of speech. The Constitution does not guarantee the right not to be offended. That right does not and should not exist.
However, since the Warren Burger court, the Supreme Court has been creating policy and legislating from the bench as a matter of routine. An excessive indulgence by an activist judiciary has created rights that do not exist, like the right to privacy, the right not to be offended, the separation of church and state, the right to entitlements by illegal aliens, etc.
The purpose of the Constitution and subsequent Amendments was to protect citizens from unreasonable and unjustified intrusion by government into their personal lives and commerce. Personal thought, political correctness and cultural engineering is neither reasonable nor justified! As noted by Justice Scalia in 2003, “The court has taken sides in the cultural war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
Yet, Congress enabled by the court, passed “Hate Crime” laws that support political correctness but severely violate the 1st Amendment. Think about it. Government is regulating thought. That’s outrageous! We have laws that punish those who commit crimes against another, what they were thinking at the time should be of no importance. Allowing the government to prosecute people for violations against preferable thought creates a “slippery slope” that should scare the hell out of any American. Justice William Douglas attributed this comment to Justice Thurgood Marshall during the debate on affirmative action, “You guys have been practicing discrimination for years. Now it is our turn.” Excuse me! Is this the kind of juvenile reasoning we want in our highest court?
The U.S. Constitution was created to protect us from our government. This “century old text”, as Eric calls it, is very concise. It is not a living, breathing document that is open to interpretation. The founders created a process in which the Constitution could be adjusted to fit changes in society. That process is via amendments, not the whims of an activist judiciary. Unfortunately, the freedoms guaranteed to us by the Constitution are quietly being taken away by those who are tasked with the sole responsibility to protect them.
Do we want a judicial oligarchy of nine legislating from the bench and creating policy according to their personal whims or beliefs, or do we want a judiciary that only reviews lower court decisions and laws enacted by the legislature and signed into law by the executive branch to ensure the decisions and laws do not violate the constitution?