How a Nation Gets the Bill of Rights Wrong
Does US culture’s problem of defining words explain the current state of political confusion? The Daily Devil’s Dictionary reports.
Perhaps the two most problematic words in the English language in the US are “amendment” and “right.” The Washington Post reports on what is being called a violation of freedom of expression: “A California high schooler is challenging her school district, alleging that its decision to ban her from wearing a ‘Make America Great Again’ hat on campus impinges on her First Amendment rights.”
She’s just a kid and can be forgiven for her ignorance. But The Post itself and the media in general persist in supporting a skewed interpretation of the first 10 amendments, possibly because they have been called informally the “Bill of Rights.”
Here is today’s 3D definition:
The text of the US Constitution that most Americans appear to believe has liberated them from any responsibility for controlling their discourse and even the thought behind that discourse
Could it be that as someone called Maddie Mueller who supports Donald Trump, the young lady’s intention is to prove that not all Muellers are opposed to the president or intent on investigating his crimes? Whatever her true intentions, she does know enough about US media to have brought her case to the attention of Fox News, whom she thanked in a post on Facebook, “God Bless Fox News for sharing my story.” Now she can thank The Washington Post whom God also seems to have blessed.
Mueller claims that what Americans like to call their “First Amendment rights” have been violated. She may have been inspired by another great but older American woman, Sarah Palin, who has often spoken up about First Amendment rights being violated when conservatives are criticized in public (see here or here).
The “rights” defined in the Constitution define the limits of action of the federal government, not of every existing group of humans. In a family, if the parents forbid the children from using specific language in the house, they are not infringing their rights and wouldn’t be infringing them even if the children were 18 or older. They are establishing rules that derive from their natural authority within the social unit.
Schools not only can but are expected to do the same thing — that is a major feature of education. They may ban any number of practices, including forms of expression, on their premises during school hours, but this doesn’t mean they are restricting students’ freedom of expression. No more than taking the ball away from a player who steps out of bounds while playing a sport infringes the player’s freedom of movement.
So, how can such discussions even take place?
At the insistence of the anti-federalists among the founding fathers, the first 10 amendments of the US Constitution were added to limit the scope of the federal government. As Thomas Jefferson described it: “[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”
The First Amendment defines five areas of human activity that the federal government is prevented from regulating: speech, press, religion, petition and assembly. It is understood, as Jefferson’s universal stricture implies (“every government”) but not stated in the Constitution itself, that state governments are also prevented from infringing these rights.
The founders would have considered as total nonsense that nongovernmental institutions — including families, clubs, associations and schools (even publicly-funded ones) — could not impose rules that constrain personal expression. And yet that is how many Americans believe their constitutional rights work. Worse, in education, where US history and civics are taught, teachers, schools and school boards appear to make no effort to clarify this basic legal principle.
Neither do the media. The Post correctly comments in this article: “But that right is not absolute, particularly for a student in a public high school such as Clovis North High.” But it fails to explain why, leaving a deep ambiguity in the minds of its readers, who still may think that wearing a politically partisan hat in a school is an act of speech. The public’s confusion would be natural in a nation whose Supreme Court recently decided — in the Citizens United case — that, as some people sum it up, “money is speech.” Respectable newspapers, such as The Los Angeles Times, have defended that notion: “Liberals are dangerously wrong about Citizens United: Money is speech.” The Times may be right, because, when assessing values and settling arguments, money is literally everything in the United States. It’s even become worthy of an Aristotelian syllogism: “Speech is everything. Money is everything. Money is speech.”
In another article, The Post demonstrates not only its own quasi-Palinesque interpretation of “First Amendment rights,” but gives the historical details on how this has become a norm, despite its fundamental historical absurdity: “The 1969 Supreme Court ruling established a core principle of First Amendment law: that public school students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ But, as with any rights, there would be limits.”
Apart from the fact that the founders themselves probably would have considered that minors had no constitutional rights, the 1969 court was correct in saying that students didn’t “shed their rights.” Why? Simply because there were no rights to shed. There is no question here of a government constraining those rights. A school is not a government. But in a nation where money and hats can be deemed speech, why shouldn’t school be considered government?
US culture has a basic problem with language and elementary logic, and the media’s role appears to be to amplify it.
*[In the age of Oscar Wilde and Mark Twain, another American wit, the journalist Ambrose Bierce, produced a series of satirical definitions of commonly used terms, throwing light on their hidden meanings in real discourse. Bierce eventually collected and published them as a book, The Devil’s Dictionary, in 1911. We have shamelessly appropriated his title in the interest of continuing his wholesome pedagogical effort to enlighten generations of readers of the news.]
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.