A Question on the First Amendment (US)

[Eternal_Freedom]

So, I've heard plenty of people talk (in reality and in films/TV) about "knowing their First Amendment rights" and how it guarantees freedom of speech, the pres, assembly and religion. So being the boring British sod that I am, I went and look it up:

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.

As quoted on wikipedia.

Now, reading that, something jumps out at me. Namely, while it says Congress can't pass laws restricting freedom of religion, speech, the press, assembly and petition, it doesn't actually say who, if anyone, has those rights.

Am I missing something? Because as written, that doesn't give anyone/anything rights, it says Congress can't restrict them, which is not the same thing.

[Oscar Wilde]

My understanding is that the distinction lies with... the government can't restrict you. They can't have you locked up for speaking out against the government, rallying against. If you're inciting violence, that sort of thing, then its a police matter and you can be in trouble at that point.
But a private business owner can tell you to leave if he doesn't like what you're saying. He's not congress, he's just some dude who owns a place.

So maybe it's more of an inference of a right, but a right all the same.

[Kingmaker]

The First Amendment has been held to apply to the states; however, that has not always been the case.

[Elheru Aran]

As a rule of thumb:

If you are in a public space, or speaking as a public entity, you cannot have your rights oppressed as long as you do not abuse them; for example, you do not have a right to incite violence or cause harm to others immediately due to what you say (the classic 'shouting fire in a crowded theater' example comes to mind). However, you can say "the damn dirty homos are destroying our values" all you like as long as you don't actually tell people to go forth and kill the gays.

A private space is somewhat of a different matter. The owner of that space is perfectly entitled to do whatever they want with you; if the owner is not present, then their representative. Say you decide to have a political meeting in a franchise restaurant such as a McDonald's, the manager is perfectly within their rights to kick you out. It won't necessarily be for expressing your political views though, or at least that won't be the stated reason.

States are ultimately subordinate to the Constitution and Federal law; they can add to it, but they can't take away from it. As is, the states and municipalities are required to protect free speech rights.

[Sea Skimmer]

Am I missing something? Because as written, that doesn't give anyone/anything rights, it says Congress can't restrict them, which is not the same thing.

Such rights had already been asserted as being natural law in the American colonies, the idea of natural law itself being highly relevant to the 17th century back in the UK what with all the killing, and the validity of said natural law in the colonies was established by further killing of British until they went away.

The constitution was worded so as to prohibit the government from restricting such 'self evident' right. The implication being that even removal of the constitution itself would not remove these natural rights or make them illegally irrelevant to whatever laws remained, the framers were pretty broad thinking in everything they did. Also they wished to reserve a large body of power for the state, and state sovereignty would not be settled until the US Civil War. More killing.

Relevantly though, in a rather important ruling I forget the name of concerning birds and Canada the Supreme Court held that the US federal government is a government of limited constitutional powers within US territory, but possesses by default all possible sovereign international power in foreign affairs. As mentioned above the court has also ruled that the 1st amendment and other amendments like the 2nd do apply to the states. Which leaves no legal body able to realistically suppress free speech in the US in a constitutional manner. Killing people until they think different remains an option of course.

[Eternal_Freedom]

Sea Skimmer, that does answer my question, especially with the "self-evident right" part. I was thinking it might have been something like that (or possibly rolled into a UN declaration after the late 40s).

To broaden things a bit, how then could segregation laws for non-whites possibly have been considered constitutional?

[Eternal_Freedom]

Ghetto edit: Or for that matter, how was slavery accepted? Or the whole "in God we trust" and "one nation under God" stuff.

Viewing them as self-evident rigts I can understand, but is it actually codified anywhere that you have those rights?

[Elheru Aran]

Sea Skimmer, that does answer my question, especially with the "self-evident right" part. I was thinking it might have been something like that (or possibly rolled into a UN declaration after the late 40s).

To broaden things a bit, how then could segregation laws for non-whites possibly have been considered constitutional?

Because segregation was considered legal with the weasel-words 'separate but equal'. As long as other races had facilities and such equal to that provided to whites, it was considered perfectly legal. Fell under the 14th Amendment anyway, not the 1st.

[Eternal_Freedom]

Surely though "Seperate" would fall under the part in the 1st about not restricting freedom of assembly?

[Elheru Aran]

Surely though "Seperate" would fall under the part in the 1st about not restricting freedom of assembly?

Oh, they were totally free to assemble... as long as they assembled with themselves, of course.

Frankly you're answering your own question... no, it wasn't constitutional. They didn't care, and interpreted it to fit their own ends.

[Zaune]

In other words, the Constitution means what the people with the most expensive lawyers and lobbyists want it to mean.

[Edi]

As it has always been

[Lost Soal]

So, I've heard plenty of people talk (in reality and in films/TV) about "knowing their First Amendment rights" and how it guarantees freedom of speech, the pres, assembly and religion. So being the boring British sod that I am, I went and look it up:

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.

As quoted on wikipedia.

Now, reading that, something jumps out at me. Namely, while it says Congress can't pass laws restricting freedom of religion, speech, the press, assembly and petition, it doesn't actually say who, if anyone, has those rights.

Am I missing something? Because as written, that doesn't give anyone/anything rights, it says Congress can't restrict them, which is not the same thing.

Alberto Gonzales made that exact argument in relation to Habeas Corpus & Guantanamo, “There is no express grant of habeas in the Constitution.” In his eyes just because the right can't be suspended doesn't men you actually have that right in the first place.

[Sea Skimmer]

In other words, the Constitution means what the people with the most expensive lawyers and lobbyists want it to mean.

Actually it means whatever the people with the most guns and ammo and fighting men and women want it to mean. See the missing parts of Ukraine for this in action. Also the totally not legally compliant US colonial revolution that put the constitution in the first place!

But do you seriously wish to live in a world in which law is utterly unbending and unchanging? From the 18th century no less?

The US constitution is a lot more solid then some, since for one thing it's still only the first one the US ever had, as opposed to say France which is on it's Fifth Republic in less time, and a prime reason why it has lasted is because it fails to define almost anything, while still laying out a workable and decent structure of government that does in fact limit its power. It does not have hundreds and hundreds of articles spelling stuff out in great detail like say,India and indeed a lot of countries do, which then would create its own nightmare of interpretation and adaption to meeta changing world. Which is one reason why some countries keep changing constitutions.

Yes we can argue with lawyers over many points and do. That is the damn point. We argue in court. Not with firelocks anymore. It's not for nothing that America was built on top of the remains and exiles of so damn many European religious wars and then the English Civil War which had strong religious undertones, but was also a sweeping economic conflict. All this was learned from, and fairly well. But that doesn't mean you should or can expect some perfect lawyer proof system, or should bother trying.

[Khaat]

Or the tl:dr version -
The US Constitution exists to define the limits of the US Government, it does not exist to define (or limit) the innumerable, inalienable freedoms of the US Citizens. Where those two meet, we have judges in dresses decide. At least we got rid of the wigs.

[Simon_Jester]

Surely though "Seperate" would fall under the part in the 1st about not restricting freedom of assembly?

This interpretation of yours was affirmed in 1954 with a ruling that, and I quote, declared that " 'Separate' is inherently unequal."

From 1896 to 1954, your interpretation had been rejected, with the notion that if the government wanted to provide 'equal' options to whites and blacks, this was inherently no more a violation of freedom of assembly than it would be to have men's and women's dressing rooms in a sports facility.

Prior to 1896, I'm not sure there was clear constitutional law on the subject.

[RogueIce]

In other words, the Constitution means what the people with the most expensive lawyers and lobbyists want it to mean.

And so it is with any law that is not worded to cover every possible exception, variation and application anyone could ever possibly imagine.

In the Constitution's case, it is a framework and we have specific legislation as well as judicial rulings to define the everyday, as well as keep up with the ever evolving needs of society and technology. As Sea Skimmer points out, the alternative is to keep changing the thing wholesale and/or adding tons and tons of amendments as time inexorably marches on.

If you thought this was some kind of clever dig at the US Constitution (or US politics in general), you were wrong.

[Simon_Jester]

Yeah.

I'd rather have lawyers argue over the interpretation of the constitution than either:
1) Be stuck with an immutable, hyper-detailed constitution that prescribes absolutely everything and dates back to the 18th century, or...
2) Have to figure out how to get the constitution rewritten on a regular basis in a country where the political environment is as crazy as mine.

There are other ways to avoid this problem, but most of them involve minimizing the amount of stuff that is actually written down. The British constitution, for example, works in large part because it isn't written down. So Parliament (once upon a time Parliament and the monarchy, which tells you how much things have changed) can alter the system to keep up with the times. Is having the House of Lords exercise significant power causing embarrassment? Write a new Act that changes that; there's no written constitution to say you can't! Is having the monarchy issuing orders a problem? Just let the queen hang around for sixty years, you know, not issuing any orders, and by the time she kicks the bucket everyone will have forgotten that the monarchy is supposed to be in charge!

And while I'm taking a sarcastic tone here, this actually worked very very well for Britain. They managed to make the transition from a minimally-constitutional monarchy that had just got done stamping out a republic (under Charles II), into a modern parliamentary democracy with vestigial monarchy, almost completely breaking the power of the feudal aristocracy and instituting sweeping reforms of judicial practice, fair elections, and the like...

And they did all this with very little politically motivated* bloodshed. Practically none, by the standards of most nations during the same time period. Even the US didn't do that well, because we had to fight a civil war over slavery.

There is a LOT to be said, in a society that respects the rule of law as a general principle, for NOT writing out your constitution in excessive detail.
________________

*Note, I'm referring specifically to violence that is motivated purely by political disagreements. The Scots and the Irish put up a hell of a fight at various times during this process. But their resistance to the English/British government had less to do with the structure of the government as such, and cannot be separated from their desire for home rule (or, in the Scots' case prior to the 1740s, loyalty to a deposed dynasty of Scottish monarchs who'd been pushed off the English throne).

It was regional separatism, more so than class or political strife, that caused problems in the British Isles, whereas most other nations in the same timeframe had at least one major war fought purely over the question of how to politically organize the state.

[Guardsman Bass]

I like that it's a recognition of where political power lies in a democratic regime, and what really constrains it (namely, norms and beliefs in procedure, law, and practice). The US could take a page from that - not necessarily in tossing out the Constitution totally, but in amending it to allow even more popular sovereignty in a constitutional framework (such as the fusion of executive and legislative power).