Posted: 2009-07-21

Reading and Understanding

Well an old acquaintance from Sun Microsystems took a look at this web site and rightly criticized my comment that the First Amendment only limits the federal government and not (for example) the states. As a reminder, here's the text:

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.

I'm not a constitutional scholar, I'm an engineer and I became fascinated by our constitution after hearing neocon members of the Bush administration describe portions of it in ways that made no sense. On the plus side, though, I am familiar with the kind of wording used in the constitution. It is similar in many ways to that of an engineering specification. I've read and written a lot of those and so I enjoy a certain familiarity with the precision and cadence.

My astute acquaintance pointed me at case law which augments (or possibly just clarifies) the First Amendment and applies it to the states as well. The specific case he mentioned is a single Supreme Court decision called The Slaughter-House Cases and the complete text is available online. If you've never read a Supreme Court decision, take a look at this one.

The cases and the subsequent decision referenced the Thirteenth and Fourteenth Amendments to the constitution but the Fourteenth is most important for our consideration of the clarification of the First Amendment. The operative phrase in the Fourteenth Amendment is:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That is referred to as The Privileges and Immunities Clause and (not to put too fine a point on it) it makes clear the principle that in the U.S. all citizens are to be treated equally and fairly.

The Slaughter-House Cases decision was a 5 to 4 split. It was argued before eight justices in 1872 but there appeared to be no majority, so it was re-argued before the full bench in 1873. This case, like so many, comes down to fine points of law and constitutional interpretation upon which reasonable people may disagree. As a simple citizen reviewing many recent Supreme Court decisions, it begins to appear that in many cases, the result may as well have been a coin toss. Indeed, the coin toss often happens in the head of Justice Kennedy. The result of this coin toss, though, changes lives in crucial ways for decades. The Constitution is written in plain English but its meaning is understood through the lens of the courts.

In the end, The Supreme Court found against the plaintiffs in that case upholding the finding of the Supreme Court of Louisiana. They determined that states do have the authority to establish monopoly corporations in order to serve the public good. In the process of supporting this affirmation, however, the court goes into great detail regarding privileges and immunities and how the state cannot override privileges and immunities granted by the U.S. Constitution. This eloquent assessment of the history and meaning of the Fourteenth Amendment is found about a third of the way into the decision. There is no doubt in my mind that my friend is correct in his assessment of the true current state of American jurisprudence, but that doesn't quite address my fascination with the wording of the First Amendment.

Bear in mind that the Bill of Rights doesn't indicate what rights the government grants to the people. Governments do not grant rights. Instead, it restricts actions that may threaten those rights that the founding fathers considered inherent to all people. The Supreme Court, in The Slaughter-house Cases, verifies that those rights assured by the Federal Government cannot be restricted by the states. That is a fine statement. It's reasonable and it would be hard to find fault with it, but that doesn't explain the First Amendment. The First Amendment doesn't grant any rights. It identifies a restriction on the Federal Government. This restriction, it states, is there so that certain specified rights will not be infringed. One could imagine that various founders saw it as a protection of other rights which were not specifically mentioned.

What still puzzles me is why the founders selected that restrictive wording for the First Amendment while the other amendments seem so much more general. The First Amendment specifically restricts "Congress" (which I think has to mean the United States Legislature). Meanwhile the other amendments use wording like "[this] right ... shall not be infringed", "[this] right ... shall not be violated" or "the right ... shall be preserved." Some of those amendments, like the eighth, don't even mention a particular right. Those more general statements seem to apply not just to the Federal Government but to any person or institution which may act to infringe civil rights. So why the odd wording for the First Amendment?

I've been skimming through the Federalist Papers and I haven't yet found an explanation. Could it be that some of the authors of the constitution were operating under the impression that a state ought to be able to establish a religion – they just didn't want the Federal Government to do so? After all, the state of Virginia had an official state religion during the time that Jefferson and Madison were serving on its Revolutionary Council. On the other hand, could this simply be a literary tic that flinched its way into that first sentence of this grand document? Maybe "Congress shall make no law" was a prefix that had been used over and over as the authors talked through these specific restrictions and it came to mean, in their minds, a general restriction on all legislatures under the constitution even though that isn't exactly what the phrase means.

It isn't critical that I get an answer to this question. Courts in the U.S. have accepted generally that this applies everywhere and the well reasoned argument in the majority decision of The Slaughter-house Cases is taken to mean that free speech, individual religious choice and peaceable assembly are universal. Oddly, this is not stated explicitly in the majority opinion. It is instead Justice Bradley, in his dissent, who makes this argument plainly:

But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself. The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property, without due process of law. These, and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities [83 U.S. 36, 119] of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not.

Here, it seems, Justice Bradley is taking a somewhat broader reading of the Bill of Rights than I would. He indicates that the whole of that document restricted only the Federal Government until the passage of the Fourteenth Amendment which then restricted all governments within the United States. All this tells me is that reading is not the same as understanding.

This fact that a series of words strung together in a manner that makes semantic sense cannot convey a specific message to all readers emphasizes the reason why we have a court system. The words only have meaning for human beings. Each human being brings his own lexicon to that meaning and that means that the words alone cannot govern. People govern. The recent hearings over the nomination of Judge Sonia Sotomayor showed how completely confused senators are over the nature of constitutional governance. The right wing senators seemed terrified that Sotomayor would bring her humanity to her decisions on the Supreme Court. They seemed to believe (like any Bible fundamentalist) that the literal interpretation of the words was all that was required. They seemed to be insisting that the Supreme Court be replaced by a computer. Of course the words mean nothing until a human being has interpreted them. I, as a native English speaker, will interpret any set of words differently than my closest friend. Even explaining my interpretation out loud doesn't always help. It strikes me that what our government does with the constitution is to further illuminate it through the courts and then put it into practice through regulation and policing. Thus the constitution is made concrete not simply through high-minded discussion but through action and enforcement.

If there were only words (words describing words) the laws of the nation would remain intractable. Could it be that a constitutional government can only clarify the law through action? Could it be that without the occasional example of a buddy who crossed that fuzzy line of legal conduct going to jail, we humans couldn't come to consensus on what the law is?

My friend is right: the First Amendment applies to everyone; but not because that's exactly what it says. It applies to everyone because rational human beings have read those original words, applied them to real world cases and made that the meaning. Human beings have filtered those words through the actual facts of the human condition and adapted their universal intent to the modern world. That is the function served over the centuries by judges. A nation of laws is a nation of people. Justice requires that laws bend for people, that people skilled in the assessment of laws as they apply to people define those bends.

Reading is important but it is not the same as understanding. That is why people administer the law and why good judges bring their humanity to the law.

Julian S. Taylor