No Law Abridging

     [I have a heavy schedule before me today, so please forgive yet another resuscitation from the ancient past. In this case the ancient past is December 12, 2003, when the following essay first appeared at the late, deeply lamented Palace of Reason. In light of the current foofaurauw over “free speech” versus “hate speech,” it strikes me as timely. -- FWP]

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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.

     The citation is, of course, Amendment I to the Constitution, an integral part of the document and one of the most revered legal proscriptions, both in theory and in practice, in the history of the world. There are only two possibilities for interpreting that passage:

1. It means what it says;
2. It means nothing.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

     The second citation is from Article VI of the Constitution of the United States. It's the most important paragraph in the whole document, for it sets the dictates of the Constitution above all other considerations. There are only two possibilities for interpreting this passage:

1. It means what it says;
2. It means nothing.

     The late Associate Justice Hugo Black liked to say "I have always read 'no law abridging' to mean 'no law abridging.'" He said it often. And indeed, it is rather difficult to evade the plain meaning of those three plain words.

     If the Constitution means what it says -- that is, if choice 1 in both cases above is the correct one -- then two days ago, the Supreme Court declared itself to be a lawless organ in service to a totalitarian State. The five Justices who voted to uphold the clearly unConstitutional McCain-Feingold Bipartisan Campaign Finance Reform Act placed their notions of "compelling government interest" and "the good of society" above the Supreme Law Of The Land, which for two centuries it has been the Court's sworn duty to safeguard.

     Let that thought sink in for a moment. Five Justices of the Supreme Court have abrogated the very contract from which their authority and responsibilities derive. There's no room for hedging here. They didn't just interpret an ambiguity in the Constitution in a way that, though novel, could be squared with the public meanings of words and the traditions of Constitutional law. They dropped the document in the mud and pissed on it.

     No, it isn't the first time, only the most egregious. Only the most appalling.

     It appears that power has gone to the Justices' heads. Chief Justice Charles Evans Hughes once said, "We are under a Constitution, but the Constitution is what the judges say it is." The warning sounded by this statement has gone unheeded.

     As long as freedom of speech and of the press were respected, there was a chance that the country might rally, might right itself and demand the rolling-back of government's usurped powers in a voice too loud to be ignored. If matters as of Tuesday are permitted to remain as they are, that chance is gone.

     The Supreme Court is not alone in its perfidy. The McCain-Feingold Act passed by hefty margins in both houses of Congress. President Bush signed it. The three supposedly counterpoised branches of the federal government have colluded to nullify the Constitution from which they derive their powers.

     Perhaps the legislative authors of the bill hoped that President Bush would rescue them by vetoing it. If so, they misled themselves.

     Perhaps President Bush hoped that the Supreme Court would rescue him by striking the Act down on First Amendment grounds. If so, he misled himself.

     The five Justices in Tuesday's majority had nothing to hope for. Nor does the country, unless We The People rise in anger and defiance. If this Supreme Court ruling is not completely disregarded by the press -- if it is not the explicit subject of an overwhelming campaign of civil disobedience -- the word "freedom" will have lost all meaning for Americans.

     A man is not free because he's permitted to vote for his political masters. The subjects of the late, unlamented Soviet Union enjoyed that "right." So did the subjects of Saddam Hussein.

     A man is not free because some portion of his earnings is still his to spend on a variety of attractive goods. Not if the government can punish him for choosing goods it has not approved.

     A man is not free because the long arm of the law has not yet descended on his neck. That's more properly called a stay of execution.

     A man is free if, and only if, he has the unchallenged right to do as he damned well pleases with his life, his property, and with any other responsible, consenting adult, provided only that he respects the equal freedom of all other men. That clearly includes the right to buy space for a political ad from any newspaper or broadcast organ willing to sell it to him.

     So long as speech was protected, Americans could claim with some justice that we were in some sense free. If Tuesday's Supreme Court decision prevails, we will not be able to call ourselves even partly free. We will be a people in chains. Chains forged to protect incumbents from having their records in office publicized in the press as they stand for election. Chains forged to increase the power of the Old Media, granting their journalists and editors the last word on political campaigns. Chains forged by (and for) men to whom "the people" are not only not sovereign, but are a force to be fastened down and made to do as they're told by those who know better.

If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home.... We ask not your council or your arms.... May your chains [sit] lightly on you, and may posterity forget that ye were our countrymen. -- Samuel Adams

     "No law abridging" means no law abridging!