The Misunderstood Constitution

Melvyn Magree

A letter writer to the Star Tribune stated that media should “return to their Constitutional responsibility of unbiased rhetoric.” (2015-07-21)  That doesn’t look like anything I ever saw in the Constitution.  I wrote a counter letter that “freedom of the press” imposes no such responsibility on the media, and it was published on 2015-07-23.

I don’t understand how people can put words into the Constitution that are not even there.  And much of the Constitution is a guideline rather than absolute law.  For example, “freedom of the press” means that I could state that you embezzled your employer of $50,000.  However, if you can prove that you did not embezzle your employer, you can sue me for defamation of character.  On the other hand, if you are brought to court on a charge of embezzlement, you have no case if I state you were brought to court.

The classic case many use is shouting fire in a crowded theatre, but even here you have to be careful.  Justice Oliver Wendell Holmes, Jr. used it as a remark in a case of “sedition”; it is not law.  See “It’s Time to Stop Using the ‘Fire in a Crowded Theater’ Quote, Trevor Timm, The Atlantic, 2012-11-02.

Besides putting words into the Constitution that aren’t there, many of us put meaning into words that the writers of the Constitution probably didn’t intend.  The current hot phrase is “Freedom of Religion” to avoid obeying laws we don’t like.  For example, paying for employee health insurance that covers contraception.  “Freedom of Religion” has been allowed erratically to conscientious objectors.

But would “Freedom of Religion” apply to not paying taxes we don’t like?  I doubt it.  Tax “choice” would be a bureaucratic nightmare far worse than educational tax exemptions for certain political organizations.

“Freedom of Religion” is also being used as justification for not serving people one does not approve of, for example, gays.  I think the sit-ins of the sixties established that if you have a public establishment you should be open to all of the public.  The only exceptions should be excluding certain behavior: “No Shoes,  No Shirt, No Service.”

On the other hand, if you are asked to cater certain parties, you should be able to decline.  If you disapprove of mixed bathing or same-sex kissing, should you be required to provide your services?

My take is that “Freedom of Religion” is the freedom to believe whatever you want: child or adult baptism, hierarchal or elected church organization, and on and on.  However, you are not always free to act on these beliefs, say virgin sacrifice.

Interestingly, some of the same people who want their Freedom of Religion want to deny Freedom of Religion to others.  For example, mandatory public school prayer.  What form should a public prayer take to satisfy all faiths?  Ironically, those who want public prayer ignore the admonition in their holy book to not be like the hypocrites who pray in public to be seen by men.

We often treat the Constitution as almost God-given, but it was the long work of a hot summer with many, many compromises, like slaves being counted as three-fifths of a person for census purposes.  Benjamin Franklin voted for the Constitution even though he didn’t approve of several parts but thought it might the best that could be written.  Note also, that 74 delegates were named to the Constitutional Convention, 55 attended, and only 39 signed the final document.

The Constitution does give the Supreme Court the judicial power of the United States.  This power is extended to a long list of cases which just about covers all possible cases.  However, it did not gain a solid reputation until the tenure of John Marshall (1801-1835).  Many of the cases brought before his court have become landmarks that are cited again and again.

However, the Court is composed of many with a variety of political beliefs.  Some decisions are unanimous, many decisions are divided.  And divided decisions may have more than two or more reasonings.  What a Court in the Nineteenth Century decided may be overturned by a Court in the Twentieth Century.

Appointees to the Supreme Court have often surprised the Presidents who nominate or approve them.  A case of point is Justice Earl Warren who put together many liberal decisions that upset the conservatives of the day; for example, Brown vs. Board of Education, making school segregation illegal.

Interestingly, the cries of “activist court” became very shrill during Warren’s tenure and beyond.  Not surprisingly, those voices were stilled during the time that the Court put corporations before people.  And “corporation” does not even appear in Constitution.

Finally, be really wary that the Constitution will protect our rights.

When the mathematician John von Neuman, a refugee from Hitler’s Germany, went for his citizenship interview, he was asked if he was glad he was in the U.S. where that couldn’t happen.  He had read the Constitution thoroughly and replied that it could.  Fortunately for von Neuman, the interviewer didn’t follow up on his answer.

It took me awhile to understand his reasoning.  Take a minute to try to answer this.

The Constitution can be amended!  What if the political will is there to make the current President the President for life?

Can’t happen?  Think again.  The Eighteenth Amendment forbade the manufacture and sale of intoxicating liquors.  It was very popular.  And then intoxicating liquors became even more popular.  It took fourteen years for the Amendment’s repeal.  If there was an amendment to make someone President for Life, wouldn’t an amendment to prevent further amendments follow?