Enduring Values, by Andrew Ciccone 1  

Interpretive turmoil and enduring values

There must be a consistent basis for interpreting the law. Justice Scalia and Bork both agree that judgments 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 should be followed, only if the laws do not fit the case at hand. Instances where the Constitution does not address such values, then statutes or amendments can be adopted. A judgment about social value, involves a comparison of competing values, as well as predictions as to the effects of the activity. 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 than another, 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 of principles and the scope of the principle applied failed to justify the Court’s findings in the Griswold 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 with any acts done in private. Consequently, the Griswold judgment for example, does not consider the rights of a minor, should any sexual act involve a minor. Bork justifiably argues that the Griswold judgment is flawed, the interpretation is illogical, as it did not follow the rule of law as it pertains to the Constitution. The argument is not in the findings of the Court, but the application and consequences that may arise from precedent for future cases. Law must follow stare decisis, protecting the power of precedent. Bork is primarily concerned with following the rule 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 essential element in the discovery of truth; “We may, and must, assume our opinion to be true for the guidance of our own conduct: and it is assuming no more when we forbid bad men to pervert society by the propagation of opinions which we regard as false and pernicious . . . Wrong opinions and practices gradually yield to fact and argument: but facts and arguments, to produce any effect on the mind, must be brought before it. Very few facts tell their own story, without comments to bring out meaning.” Our entire basis for a democratic government would be meaningless without the freedom to discuss the issues that shape polices and to defend our civil liberties.

During and after the American Revolution any expression that undermined the legitimacy of our government was considered seditious. Professor Levy’s textual and historical work, Legacy of Suppression, makes a very compelling case as to the reasoning behind the drafting of the First Amendment. The Bill of Rights was drafted by Federalists in order to sway States concerned about losing rights to the Federal power in order to ratify the Constitution. Americans historically have a healthy contempt for form of authoritarianism that may undermine individual liberties. Not surprisingly all of the amendments embracing an ascendant philosophy of the First Amendment have been ratified such as, the Nineteenth Amendment that gave women the right to vote. The ascendant interpretation of the First Amendment differs from every other aspect of the Constitution.

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 of governmental restraint. Constitutional protection should be accorded only to speech that is explicitly political. Law Professor Alexander Meildejohn states the First Amendment does not protect the “freedom to speak.” It protects the freedom of those activities of thought and communication by which we “govern”. There should be no Constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of 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 substantive evil.”

It is impossible to leave all speech unregulated, what is not clear is as to where such distinctions are drawn. To be certain we do not live in a world of absolutes, any expression that undermines our nation’s security ultimately threatens our individual civil liberties. The historical evidence of censorship 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, and prohibiting to be read what they fancied not; yet sparing in their in their censures, and the books not many which they so dealt with.” -- Areopagitica, John Milton. Threats to our nation’s security are not to be ignored, least we need to be reminded that we are fighting two wars in Iraq and 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 our individual civil liberties.

Chief Justice Marshall’s underlying finding in Marbury v. Madison clearly established that the justices are the naturally appropriate expositors of determining what the law is. Madison’s doctrine suggests that representative democracy may properly take many forms, so long as the forms do not become “aristocratic or monarchial”. The intent here is that there are checks and balances 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 voices in his book, A Matter of Interpretation. Bork and Scalia are troubled that state decisis is losing vigor, and that “neutral principles” are being ignored in favor to the subjective forms in which neither text nor precedent is accorded much respect.

Civil law Judges and their common law counterparts have been overwhelmed with the ambiguities 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 Law Professor Glendon. Over the years laws have been made that have not relied on the Constitution or stare decisis. Bork contends that, “every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the respective claims to pleasure.” Too often the Courts 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 in time and context.” Although repealed, we need only cite The Sedition Act of 1798 as evidentiary support of Glendon’s statement that, “history has already proven that in times of crisis, 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 not protected as the unprincipled approach of interpreting the law expands, “the democratic elements in our republican experiment atrophy.” – Scalia. Coercion by the majority no matter how democratically 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 a set of principles interpretations may evolve over time. A living Constitution is a body of law that grows and changes, in order to meet the needs of a changing society; “the Constitution is, after all, a whole and not just a collection of unconnected parts.” – Professor Jed Rubenfeld. Justice Scalia contends that a society that adopts a Bill of Rights is skeptical that evolving standards of decency always make progress, and those societies always mature, as apposed to rot. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed 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 the contextual rule of Constitutional law in favor to the values and individual biases that do not consider stare decisis. I disagree with the notion of a “morphing document”. Although there seems to be a lack of consistent interpretation of the law, unconstitutional laws are eventually reversed, history also bears this out. The Court’s are beginning to unravel the multitude of precedents no longer applicable and to render obsolete statutes with decisions based on the values set forth in our Constitution. Laws enacted today in times of crisis may be found unconstitutional tomorrow. Judgments that can not be arrived from precedent or Constitutional law may require new laws to be made.

Although an ascendant view is not in strict accord with Constitutional law, the ascendant view of our First Amendment embodies the very fabric of our democracy, it must be embraced. In deference of our abandonment to an adherence to a consistent set of principles, democracy succeeds in spite of itself. John Stuart Mill eloquently argues that only through free speech is the truth discovered; “As mankind improve, the number of doctrines which are no longer disputed or doubted will be constantly on the increase: and the well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested.” 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 years are instilled in our Constitution. Ultimately unconstitutional laws are put to the test and not surprisingly they are either repealed or amended.

Recent Supreme Court findings regarding the right to bear arms and rape seems to indicate ruling that defend individual rights as opposed to a collective, or majority. In the District of Columbia the high court’s protected our Second Amendment. As citizens, American’s are afforded the right to defend themselves. The Court’s also ruled that incidents regarding rape can not be articulated in a law that applies in every instance. It is my opinion that the Court’s have determined that any case that involving rape be tried on a case by case basis. These judgments seem to find for minority rights, that is to say individual freedoms, not a majority such as a religion.

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)