constitution - Otherwise Occupied

At long last, I listened to one of the new "Curmudgeon's Corner" podcast. My first question is, why isn't it "Curmudgeons' Corner"? I started with the July 1, 2007, edition. It was... disorganized.

As Sam mentions in his introductory post, I had some involvement. I don't remember all of those shows and years anymore, but if he was doing it in 1995, I guess I was the Public Affairs Director during part of its run. During that period of time, I produced a show done in Cantonese. I had to trust the students conducting the show, because I wouldn't have known what to have bleeped. For the life of me, I can't remember the show I did that final year... "The <something> Tiger." Someone should remember. My co-host got us in lots of trouble by attacking a "delicate flower" repeatedly.

Anyhow, in this episode of CC, I just figured I'd comment on some of Sam's statements regarding "constitutional theory." I chuckled when he said that as a literalist, he feels that laws "should mean what they say and say what they mean." That would be lovely. I'll assume that Sam has mastered the art of disambiguation. Unfortunately, even our most diligent lawmakers have yet to discover that most desirable of skills. Next, he declares tat the "interpretation thing by the Supreme Court was bogus in the first place."

Perhaps that is the case. I'm going to give Sam the benefit of the doubt and assume that he's read Article III of the Constitution of the United States. While Marbury may have been rather sweeping, it's not unreasonable to expect that when a body is invested with "[t]he judicial Power of the United States," that that body may have to interpret laws. Regrettably, language is filled with ambiguities. Who but the courts are going to be the arbiters of meaning?

It gets better. Sam launched into an abbreviated (we lost the longer one) tirade on "Congress shall make no law . . . ." He didn't use the verbatim language, but I'm pretty sure that's what he meant. That's where it became interesting. If one was to believe his rant, shortly after the ratification, not only did the Supreme Court butcher "Congress shall make no law," it also butchered the independence of the states. Specifically, Sam declared, "very early on the Supreme Court interpreted that the states can't [restrict speech], either."

To use Sam's next line, "I don't think that's true."

For all intents and purposes, there are two periods of Constitutional law. The split comes with the passage of the Fourteenth Amendment to the constitution in 1868. In fact, it wasn't until 1897 that the Supreme Court first began incorporating the components of the Bill of Rights, holding states to those standards. In fact, "early on," the Supreme Court was emphatic about the limitations of constitutional protections.

In the 1833 decision, Barron v. Mayor and City Council of Baltimore, the Court was clear: "The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states." And later: "These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them."

In fact, it wasn't until 1919 that the Court considered the First Amendment as a basis for overturning an act of Congress, in Schenck v. United States, and it was 1925 when the Court explicitly incorporated the First Amendment and applied it to state action, in Gitlow v. New York. For those keeping score, that's over 100 years and hardly "early on."

Now, I'm not suggesting that it isn't possible to be a "First Amendment Absolutist," as one of my classmates last semester described herself. I definitely don't see much ambiguity in "Congress shall make no law." What's more, we're not alone. Justice Hugo Black wrote, "The phrase 'Congress shall make no law' is composed of plain words, easily understood. The language is absolute. . . . [T]he framers themselves did this balancing when they wrote the [First Amendment]. . . ."

However, mister literalist, I feel compelled to ask how you feel about your non-speech, non-expressive activity not being protected whatsoever. After all, the non-ambiguous words of the constitution protect speech, which my dictionary says is comprised of "articulate sounds." If we're going to be literal, we're going to lose a great deal of protection.

If we're not going to be literal, who's going to decide what it means?