Enduring Values, by Andrew Ciccone 1 Interpretive turmoil and enduring valuesThere must be a consistent basis for interpreting the law. Justice Scalia and Bork both agree thatjudgments must adhere to the text and history interpreting the original and current meanings.Judges can not construct new rights based on the prevailing values of any time in our history,regardless if that value is a majority or minority opinion. Precedents and common laws shouldbe followed, only if the laws do not fit the case at hand. Instances where the Constitution doesnot address such values, then statutes or amendments can be adopted. A judgment about socialvalue, involves a comparison of competing values, as well as predictions as to the effects of theactivity. The intent is to separate law from politics, so that judgments are reached without bias.Law Professor Herbert Wechsler’s, “neutral principles” embody a choice of one value rather thananother, not allowing personal biases or values to cloud the decisions of the courts.Justice Douglas’s Court stuck down a Connecticut anti-contraceptive statute. The derivation ofprinciples and the scope of the principle applied failed to justify the Court’s findings in theGriswold decision. Justice Douglas called the First Amendment’s penumbra, a protection of“privacy” also citing the third, fourth, and fifth amendments, along with the ninth amendment.Based on Justice Douglas’s opinion it can be argued that the government may not interfere withany acts done in private. Consequently, the Griswold judgment for example, does not considerthe rights of a minor, should any sexual act involve a minor. Bork justifiably argues that theGriswold judgment is flawed, the interpretation is illogical, as it did not follow the rule of law asit pertains to the Constitution. The argument is not in the findings of the Court, but theapplication and consequences that may arise from precedent for future cases. Law must followstare decisis, protecting the power of precedent. Bork is primarily concerned with following therule of law as is Scalia. I find no argument with these men on this point.John Stuart Mill’s essay On Liberty, very eloquently articulates that speech is an essentialelement in the discovery of truth; “We may, and must, assume our opinion to be true for theguidance of our own conduct: and it is assuming no more when we forbid bad men to pervertsociety by the propagation of opinions which we regard as false and pernicious . . . Wrongopinions and practices gradually yield to fact and argument: but facts and arguments, to produceany effect on the mind, must be brought before it. Very few facts tell their own story, withoutcomments to bring out meaning.” Our entire basis for a democratic government would bemeaningless without the freedom to discuss the issues that shape polices and to defend our civilliberties.During and after the American Revolution any expression that undermined the legitimacy of ourgovernment was considered seditious. Professor Levy’s textual and historical work, Legacy ofSuppression, makes a very compelling case as to the reasoning behind the drafting of the FirstAmendment. The Bill of Rights was drafted by Federalists in order to sway States concernedabout losing rights to the Federal power in order to ratify the Constitution. Americanshistorically have a healthy contempt for form of authoritarianism that may undermine individualliberties. Not surprisingly all of the amendments embracing an ascendant philosophy of the FirstAmendment have been ratified such as, the Nineteenth Amendment that gave women the right tovote. The ascendant interpretation of the First Amendment differs from every other aspect of theConstitution.
Enduring Values, by Andrew Ciccone 2 “Congress shall make no law . . . abridging the freedom of speech,” in its absolute context“speech” is any form of verbal communication and “freedom” is the total absence ofgovernmental restraint. Constitutional protection should be accorded only to speech that isexplicitly political. Law Professor Alexander Meildejohn states the First Amendment does notprotect the “freedom to speak.” It protects the freedom of those activities of thought andcommunication by which we “govern”. There should be no Constitutional obstruction to lawsmaking criminal any speech that advocates forcible overthrow of the government or the violationof any law. Justice Brandeis emphasized that the First Amendment does not guarantee, “Speech[that] would produce, or is intended to produce, a clear and imminent danger of some substantiveevil.”It is impossible to leave all speech unregulated, what is not clear is as to where such distinctionsare drawn. To be certain we do not live in a world of absolutes, any expression that underminesour nation’s security ultimately threatens our individual civil liberties. The historical evidence ofcensorship has persisted for thousands of year. Around the year 800 A.D., “the Popes of Rome,extended their dominion over men’s eyes, as they had before over their judgments, burning, andprohibiting to be read what they fancied not; yet sparing in their in their censures, and the booksnot many which they so dealt with.” -- Areopagitica, John Milton. Threats to our nation’ssecurity are not to be ignored, least we need to be reminded that we are fighting two wars in Iraqand Afghanistan. In 2006 Lodi Muslims were arrested by the FBI in an anti-terror investigation.Our government must strike a balance between protecting our security and racial profiling.American’s respect other’s rights to expression, as long as they beliefs do not infringe upon ourindividual civil liberties.Chief Justice Marshall’s underlying finding in Marbury v. Madison clearly established that thejustices are the naturally appropriate expositors of determining what the law is. Madison’sdoctrine suggests that representative democracy may properly take many forms, so long as theforms do not become “aristocratic or monarchial”. The intent here is that there are checks andbalances in place that ensure that no one branch exerts unlimited authority. A “Madisonian”system is far from completely democratic. This is exactly the concern that Justice Scalia voicesin his book, A Matter of Interpretation. Bork and Scalia are troubled that state decisis is losingvigor, and that “neutral principles” are being ignored in favor to the subjective forms in whichneither text nor precedent is accorded much respect.Civil law Judges and their common law counterparts have been overwhelmed with theambiguities and inconsistencies of precedents and interpretations of the law. This has resulted in“the civil law system [being] thrown into interpretive turmoil of enacted law” – Harvard LawProfessor Glendon. Over the years laws have been made that have not relied on the Constitutionor stare decisis. Bork contends that, “every clash between a minority claiming freedom and amajority claiming power to regulate involves a choice between the gratifications of the twogroups. When the Constitution has not spoken, the Court will be able to find no scale, other thanits own value preferences, upon which to weigh the respective claims to pleasure.” Too often theCourts have ignored stare decisis and Constitutional law. Glendon points out this contradiction,“the conscience of our society weighs the competing needs and claims of liberty and equality intime and context.” Although repealed, we need only cite The Sedition Act of 1798 asevidentiary support of Glendon’s statement that, “history has already proven that in times ofcrisis, the majority can and does infringe upon our civil liberties.” The will of the people, “the
Enduring Values, by Andrew Ciccone 3 majority” can impede upon individuals, “the minority’s” freedoms. If individual liberties are notprotected as the unprincipled approach of interpreting the law expands, “the democratic elementsin our republican experiment atrophy.” – Scalia. Coercion by the majority no matter howdemocratically decided in deference to the minority is tyranny.Freedom of speech is synonymous with liberty it is such a vital part of our democracy.Constitutional Professor Lawrence Tribe and Justice Scalia agree that the First Amendment as aset of principles interpretations may evolve over time. A living Constitution is a body of law thatgrows and changes, in order to meet the needs of a changing society; “the Constitution is, afterall, a whole and not just a collection of unconnected parts.” – Professor Jed Rubenfeld. JusticeScalia contends that a society that adopts a Bill of Rights is skeptical that evolving standards ofdecency always make progress, and those societies always mature, as apposed to rot. Societyconsents to be ruled undemocratically within defined areas by certain enduring principlesbelieved to be stated in, and placed beyond the reach of majorities by, the Constitution.The contradiction is that the First Amendment’s aspirational interpretations abandon thecontextual rule of Constitutional law in favor to the values and individual biases that do notconsider stare decisis. I disagree with the notion of a “morphing document”. Although thereseems to be a lack of consistent interpretation of the law, unconstitutional laws are eventuallyreversed, history also bears this out. The Court’s are beginning to unravel the multitude ofprecedents no longer applicable and to render obsolete statutes with decisions based on thevalues set forth in our Constitution. Laws enacted today in times of crisis may be foundunconstitutional tomorrow. Judgments that can not be arrived from precedent or Constitutionallaw may require new laws to be made.Although an ascendant view is not in strict accord with Constitutional law, the ascendant view ofour First Amendment embodies the very fabric of our democracy, it must be embraced. Indeference of our abandonment to an adherence to a consistent set of principles, democracysucceeds in spite of itself. John Stuart Mill eloquently argues that only through free speech is thetruth discovered; “As mankind improve, the number of doctrines which are no longer disputed ordoubted will be constantly on the increase: and the well-being of mankind may almost bemeasured by the number and gravity of the truths which have reached the point of beinguncontested.” It is my belief that man’s desire to get to the truth like the human spirit itself,prevails. The moral and ethical doctrines that have endured unchanged for thousands of yearsare instilled in our Constitution. Ultimately unconstitutional laws are put to the test and notsurprisingly they are either repealed or amended.Recent Supreme Court findings regarding the right to bear arms and rape seems to indicate rulingthat defend individual rights as opposed to a collective, or majority. In the District of Columbiathe high court’s protected our Second Amendment. As citizens, American’s are afforded theright to defend themselves. The Court’s also ruled that incidents regarding rape can not bearticulated in a law that applies in every instance. It is my opinion that the Court’s havedetermined that any case that involving rape be tried on a case by case basis. These judgmentsseem to find for minority rights, that is to say individual freedoms, not a majority such as areligion.
Enduring Values, by Andrew Ciccone 4 Sources – Bork, R. H. (1971). Neutral Principles and Some First Amendment Problems. Indiana Law Journal; Vol. 47, No. 1. Crystal Carreon, C. & Magagnini, S. (2006, April 26). Lodi Muslims fear suspicions will linger. The Sacramento Bee. Mill, J. S. (1869). On Liberty. Cambridge University Press. Milton, J. (1644). Areopagitica. Facsimile reprint of 1868 edition by Alex Murray & Son, London. Plato. The Republic. Cambridge University Press.Supreme Court Cases – District of Columbia v. Heller. (2008, June 26) Griswold v. Connecticut. (1965, June 7) Kennedy v. Louisiana. (2008, June 26)