| Monday, December 13, 2004 |
18:07 - The many shades of black and white
http://faculty.ncwc.edu/toconnor/410/410lect08.htm
|
(top)  |
I've been becoming more than casually interested lately in the reasoning behind a lot of Constitutional constructional language and derived law; most particularly the First Amendment, and why it's worded in such severe, direct, negative, and injunctive language—especially compared to the equivalent statements of rights and freedoms used by other countries, such as Canada, which are much more vague and less legally actionable.
We say, after all, that "Congress shall make no law... abridging the freedom of speech, or of the press". It sounds pretty cut-and-dried and quite restrictive. It doesn't seem, on the face of it, to take into consideration the usual list of exceptions: slander, libel, obscenity, and yelling "fire" in a crowded theater. Clearly some muddling of the message has taken place over the years, even while we continue to stand on the starkness of the First Amendment's language in interpreting whether it's okay to hold white-power rallies or boo Linda Ronstadt off-stage. Yet it's hardly common knowledge what the various intricacies are, what the history of "tests" are that have been applied to the Amendment and its enforcement, and the shifting political winds throughout the last century in particular which have made this country seesaw back and forth from more restrictive to more permissive interpretations of it.
Well, wonder no more. This lecture by Dr. Thomas O'Connor of NC Wesleyan College gives a rough-riding, condensed history of the First Amendment's various moltings over the years, by the end of which your head is guaranteed to swim, and you'll wonder how those few simple clipped words ever seemed so easily interpreted. We'd love for our legal language to be general and elegant, with enforcement easily following from a clear reading of the words; but the precedent on the Amendment involves so much specific application, so many practical examples and human loopholes (like the "Heckler's Veto") and delineations of societal norms that derive from nothing more dispassionate than our Judeo-Christian consensus as to what comprises "polite society", that any such elegance is long since lost.
I'd hate to be a law guy. It must make it impossible to have an opinion on anything.
Oh, granted, I still think the First Amendment is pretty damned powerful, and I'm pretty happy with the "tests" that are currently in place and that have displaced other such "tests" that were more objectionable, like the "Bad Tendency Test" that sparked McCarthyism. I think it's a testament to its strength that it still stands in its original form, and is still taken so seriously, even after all this time and interpretation and reinterpretation. The fact that above all else still stands this stern injunction to always default to the condition of not making a law if any doubt exists as to its appropriateness is perhaps one reason why Jefferson and Franklin and friends would not be horrified at what's become of their document 215 years later.
(Oh, and Dr. O'Connor has lots of other lectures on interesting matters of our time, such as Homeland Security, Intelligence Gathering, Nationalist Terrorism, and Islamic Extremism—all of which seem grounded in a very sensible worldview, for a college professor. Well worth a visit.)
|
|
Brian Tiemann
