Not so free speech

"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 of the right of the people to peaceably assemble, and to petition the government for a redress of grievances."

Congress shall pass no law abridging the freedom of speech, or of the press.

That sounds pretty straightforward.

Which of these words did Congress not understand? Where is the part that the Supreme Court thinks implies, "Except when we think the speech is something we don't like or Americans shouldn't hear?"

Every time the Supreme Court rules some speech or some writing is obscene or a detriment to the morals of Americans, is that not changing the words and intent of the Constitution? Does the Supreme Court, or any federal court, have the right to pass new laws under the guise of interpreting existing laws?

Perhaps more importantly, is restricting the kinds of words a person can write and publish on a press, or speak in public, not the same thing as restricting the very thoughts of that individual?

Did you know there are cases where people have been convicted on obscenity statutes (which are themselves contrary to the directive of the Constitution that "Congress shall pass no law") when all he did was write his thoughts down in a private unpublished journal kept in his house? Or that people are being convicted of sex crimes because they have "obscene" cartoon drawings on their computer -- even though the search warrant was to look for drugs in the house?

Cartoons include Anime and Manga, in case you are not sure. Manga often portrays underage sex, you see, and so the entire genre is suspect. Fantasy drawings? Who cares; you'll still go to prison for owning them.

Just a reminder: it's ok to put a crucifix into a jar of urine and put it in an "art" display in such a way that the viewer has to walk on a flag on the floor in order to get close enough to see what it is. "Piss Christ", remember?

And it's certainly within the bounds of free speech for a group of fanatics to harass grieving families at cemetery services with hate speech during a soldier's funeral. So has said our courts recently.

I suppose that most people don't care that they can't write about anything at all that they can conceive in their minds. Perhaps I shouldn't either.

What follows should probably be in a separate post, but let me just say that my open-mindedness doesn't extend to photographs and films of actual people doing actual things; I think that needs to be regulated. I am only talking in this post about writings and thoughts. For adult consumption. (Parents decide what their children can read.)

Presidents of Congress

I was writing a piece the other day on the U.S. Constitution, for another project, and had to do a little research on one or two points. For example, after the constitution was agreed to at the convention in September, 1787, the convention members signed it and sent it over to congress to be voted on. One of the things I looked up was the cover letter of transmittal. It was addressed to the "president" and signed by the President of the Convention (George Washington.) Who was this other president?

I was stymied at first. Then I recalled we were operating under the Articles of Confederation at that time, and the new constitution was being sent to the "President of Congress." (The Continental Congress.)

That brings up the old trick joke of "Who was the first President of the United States?" Some say John Hancock. Wrong. Some say George Washington. Right. George Washington is the right answer because he was the first president of the United States under our present constitution, and before that, the "presidents" were presidents of congress.

There were a lot of presidents of congress, starting back in 1774. Mostly they changed with each session of congress, more or less. They were more like an elected chairman of a committee rather than the "grandeur" of our current system. And John Hancock was, indeed the president of congress on July 4, 1776. But he wasn't President of the United States like now, and he wasn't the first president of congress, either.

The first president of congress was Payton Randolf and the last was one Cyrus Griffin. In between were 14 others (two were duplicates), including the aforementioned John Hancock. Also numbered among those early, rather fleeting in terms, presidents were John Jay, who would become our first Secretary of State and, later serve on the Supreme Court; and Richard Henry Lee of Virginia, ancestor of Robert E. Lee. Randolf and Hancock each served two terms each, both non-consecutive.

So it was president of congress number 16, Cyrus Griffin, that the cover letter signed by George Washington was sent, along with the new constitution. Griffin dutifully put the matter before the congress of that time, and the new compact was passed and sent out to the states for their concurrence. Griffin stayed on as president until George Washington was sworn in under the new constitution on April 30, 1789.

One point of interest: one of these old congressional presidents, number 15, was Arthur St. Clair. He was pretty famous and pretty interesting. I won't go into his life here, but he came to America from Scotland, as a British soldier, during the French and Indian War (the 7 Years War, as the British call it) and is the only American president of congress who was born on foreign soil. He was born during the latter stages of the Jacobite Rebellions and his family moved because of them, and that is why his name came to my attention.

I have a little more to say on my other blog about the Jacobite Risings.

I am aware that one of the things other countries hate about Americans is that we always are talking about our Wonderful, Glorious, Constitution and saintly Founding Fathers. A lot of them don't think too much of our constitution as anything special, and are sick of hearing about the traitors who were our founding fathers. To them, I hope they are not offended by this post.

We the people?

At the very beginning of the U.S. Constitution, before it starts in on the specifics of governance, it lists the reasons for its existence.

To form a more perfect union

To establish justice

To insure domestic tranquility

To provide for the common defense

To promote the general welfare

To secure the blessings of liberty

Six things. One would hope that all specific procedures and laws ensuing would harken back to one or more of these general goals. One would expect, for example, for congress NOT to pass a law which does away with our armed forces.

One could argue that the fifth reason authorizes the current nanny state. Perhaps even the second reason, too - if you assume "Social Justice" as well as legal justice.

Today, the only tenet the government really adheres to doesn't appear on that list: "To redistribute wealth."

Some of you may have gathered from my past writings that I personally prefer the belief that the government is best when it is concerned with finding ways to facilitate personal liberty and individual initiative rather than coming up with actual social programs and then pushing that agenda, a certain group of people having decided this or that program will make all citizen's lives somehow better.

My opinion, however, doesn't automatically mean most Americans don't want a nanny state, womb to tomb care from their government. I recognize that. All I can do is fight for my idea against THEIR idea, by trying to garner majority support. I don't mind having to do it that way; it seems very congruent with the concept of democracy, and I like democracy (with certain modifications.)

The only thing is, it seems like the two concepts (nanny state versus individual liberty) are not things that can really coexist: the more social programs and other things the government thinks up that are in their opinion good for me, the more necessary it is for them to take personal liberties away from me. Little by little, chunk by chunk.

The pendulum seems to have swung very much in favor of Uncle Sam as nanny right now. This is probably not surprising since there are a lot of new inhabitants who don't remember having a lot of personal freedom, who mostly come from countries with governments who are not that big on personal freedom for their citizens anyway. It is also not surprising since, because of past government social programs, more and more of us don't have a lot of money left anymore and the current government entitlements look pretty good. Best not to try to look too far into the future, though; nobody is dumb enough to think the current entitlements are financially sustainable, let alone add more stuff to the dole menu.

I also have this theory that there should be a balance between Capitalism and Socialism, if only to produce jobs for those who might WANT to work rather than suck up a dole. However, that is not likely to happen again until the nanny cycle has run its course. Only when the government has drained all the producers of all their money, only when the government has printed so much worthless paper that $20 might buy you a pack of chewing gum, only when "entitled citizens" are suddenly forced back into productivity and self-responsibility again in order to survive, will the cycle of capitalism will resume.

Like that ol' Phoenix, capitalism always rises, of necessity for human survival, from the ashes of the false and cruel dreams of socialism.

The Power Company

At the very top of everything in the USA, government-wise and authority-wise, is the U.S. Federal Government. Or so those who think they are at the top would have you believe.

The federal government is the big boss, at the very top, and it tells the states what to do. It also regulates the daily lives of U.S. citizens. Anything it wants to do, it can do. And does it ever do! Laws by the hundreds - orders for the states and the people to abide by. It knows what's best for all of us. The federal courts, especially the Supreme Court, is over all the state courts and can overturn anything the state courts do. It is very powerful indeed. How much of this paragraph is true?

While the above may have come (nearly) to pass in today's world in the USA, it isn't really anything like the writers of our constitution had in mind. It wasn't what the states had in mind when they agreed to the new constitution, either. Indeed the constitution doesn't really say anything like the above at all. So how did we get into this sorry mess (my opinion) where the servant of the states grew into a seven-headed (at least) monster that devours everything in it's path, money-wise, angers the rest of the world and strikes terror into the hearts of the states and the citizens? Let's investigate. Then let's discuss how we can tame this monster and put it back in harness.

The first (and most important) thing Americans need to remember, or be informed of, is that the the federal government has only the powers the states allow it to have. The states "cede" certain powers to the federal government, and they can "uncede" them at will (by modifying the constitution, which only the states can do.) Somehow, the federal government has bluffed the states and the people into believing that all power derives from the top, that THEY are at the top, and that they are the final word in all things.

However, our constitution is what defines who has what powers, not the bureaucrats. What does the constitution say?

Earlier, we talked about the Preamble to the constitution. Although not law, the Preamble told us why the actual constitution was being written: to make the lives of individual citizens better and to form a better union between the several states. Frankly, it left no doubt where the true power was coming from: "We, the people...".

Now we look at the very first Article of the actual constitution.

Article I, Section 1. "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Oh, my. Trouble already. I would call your attention to the word "granted".

The U.S. Constitution is essentially an enumeration of the powers that the new federal government would have. It is clear from the very first sentence that this listing of federal powers was "granted" by someone or something. If something is "granted" to you, that means the person or thing doing the "granting" is superior to you. Otherwise, you could just TAKE the power.

So... who is doing the granting? Ostensibly the several states which had decided to form a union, but more correctly the PEOPLE who lived in those several states. The state governments, after all, existed only at the pleasure of the people and for the purpose of carrying out the will of the majority of those people, as made known through their representation in the state legislatures.

Remember our discussion defining what a republican form of government is? ("Republican" meaning "a republic" - nothing to do with the political party that was formed much later.) Remember that the definition of that form of government was that the power rested with the citizens of the country, but was expressed through their elected representatives.

That is the not-so-subtile difference between a republic and a pure democracy: representation. In a pure democracy, majority rules. Period. Government by referendum. We don't have that form of government. In the USA, whether at the federal level or at the state level, only very large and important issues are put directly to the people. In a republic, the people we choose to represent us engage in democracy, not the people directly (except in the actual choosing of our representation, and an occasional legitimate referendum.)

Here we could argue the merits of pure democracy, but the end result would be an agreement that it is too cumbersome (in a very populous country) to have the individual citizens vote on each and every issue that comes up. For example, should our country be attacked, it would be rather foolish to have the people vote on what to do about it. Not while we are being killed. Our representatives are supposed to keep in touch and know our minds and do what the majority of us WOULD have done. The result, of course, is that up to half the people are always dissatisfied with their representation.

This constant segment of dissatisfaction, incidentally, is what keeps representatives who wish to be reelected listening to the citizens. The loyal opposition keeps those who are in power ever vigilant, with ears constantly open. At least that was the intent.

What very important thing have we learned from the very first sentence of the constitution?

In my opinion, it is that the framers of the constitution intended to give the federal government the powers needed to govern effectively, while denying it so much power that it would have had the ability to abridge the liberty of the governed.

To be continued. (There are even more sentences to discuss. :)

Labels, continued

Glancing at the fuel gauge as I was driving today reminded me again of the labels we Americans have been pasting on each other the last few years. Once again we have Left and Right, don't we?

The Left is "empty" - empty old ideas and empty promises that never quite come to pass. And the Right is "full" - full of hot air and full of hot-shot plans for a better America that also never seem to materialize.

The main thing that occurred to me, though, was how much we need to get away from labels altogether. We need to stop trying to marginalize our fellow Americans, stop demonizing each other. We have very different ideas on how to proceed, but we still have a common goal, I think.

If we are going to use a Left and Right "fuel gauge", let's change the labels on it at least. On the left is "Big Government", say; and on the right is "Personal Freedom", say. And the closer our lives get to "Big Government", the less "Personal Freedom" we have.

It is always a trade-off. Having no government at all doesn't work. Libertarians are dreamers who omit the everyday need for all societies to have an adequate authority, a government. Pure "Personal Freedom" doesn't exist unless you are alone on the planet. Pure "Personal Freedom" hasn't existed in America since the days of the westward expansion, where a man could  go up into the mountains and just lose himself, totally alone with no other human contact. Such a man could do whatever he pleased. And with that pure "Personal Freedom" came life or death consequences. No society, no government, no help if you needed it.

On the other hand, we have come too far toward the other direction in our present time, in my opinion. We have come very close to womb-to-tomb reliance on big government, and have given up much in the way of personal freedoms along the way.

I am not necessarily lamenting the loss of certain of these freedoms: I don't think I miss being able to strap on a gun like they did in the Old West, for example. Sometimes I do long to be able to open a business without having to get the government's permission and pay to be licensed and inspected. Here I started to say that licenses and inspections are all for the better and that there is less Snake Oil in the marketplace than in my great-grandfather's time. But that's not really so.

Much of this growth in government is unavoidable. There are Americans alive today who remember when the population of our country was 150 million people. It is double that size today. Twice as many houses. More than twice as many cars honking at each other. So, by virtue of us being twice as large, we have had to cut down on the personal freedoms - just to get along with one another. More or less.

It has gone too far though. A couple of years ago, I replaced the sidewalk that runs in front of my house. I had to go down to the city and get a permit to do this, of course. Or at least the contractor had to do it. In the process, I found that the federal government was involved in my little project too. See... the new sidewalk had to be flat where both driveways cross it to enter my property. Not being able to make the sidewalk slant at the entrances means my car scrapes on the bottom when I drive up into my driveway now, since I live on a little hill and the driveways are steep. There was no problem before when the sidewalk was slanted starting at the road.

Why did the federal government require that I construct it perfectly flat? The city didn't care. The county didn't care. The state didn't care. Well, the federal government some years back passed a law, a very well-meaning law I might add, called the Americans With Disabilities Act. This created many things, such as requirements for ramps instead of stairs, and a certain number of handicapped parking spots in parking lots, and automatic doors, and wide elevators and special bathroom stalls and on and on and on. It lead to city buses having ramps to lift wheelchairs into the bus through a special door, and many more things. America has always been concerned with trying to make each citizen equal with other citizens as much as possible, so I'm not complaining. But what does this have to do with the sidewalk I put in front of my house?

Well, it had to be flat so that all the wheelchair traffic that passes in front of my house will not lean to the side when they cross my driveways. You may be wondering how many wheelchairs have passed in front of my house in the last 50 years. None. And you don't see any wheelchairs downtown using the little ramps that have replaced curbs on each intersection either. Why should they? - all they have to do is make a telephone call and a special van with a ramp comes and picks them up and takes them where they need to go. But if they DID want to cruise the downtown sidewalks (or any other sidewalk in town) they won't be bothered by curbs. And they won't tilt slightly to one side if they ever decide cross my driveways, either.

Of course, when the Feds pass these laws, they seldom fund them. And I guarantee the Feds did not help pay the extra cost for re-engineering my sidewalk. I guarantee the state, county and city did not help either, although the latter will charge me extra for the special inspection and Federal ADA certification. So who does that leave to pay? Hmmmm.

This is just a personal example I can give you of the ridiculous intrusions the federal government has made into the daily lives of citizens. The U.S. Constitution, in which the states gave the federal government certain powers, says, in my reading, that the federal government is established to do two things: regulate interstate commerce and provide for the national defense. Oh! How far they have stretched the former to include my humble sidewalk!

To be continued. I assure you.