SINCE IT IS ALMOST AS RELIABLE an event as the sunrise in the morning, I had known that my criticism of The First Amendment and its interpretation by courts and, especially, as promoted by the ACLU and other "civil liberties" hacks I had long ago copied and saved a record in a brawl caused when a former National Legal Director of the ACLU, seeing how that "free press-speech" stuff was working out in real life, producing an ever worsening Republican-fascist hegemony that endangered so many of the civil liberties and rights and lives of Black People, People of Color, LGBTQ people*, Women, etc. was having second thoughts permitting the mass media to lie with impunity . . . would produce whining.
I will note that my criticism of The First Amendment long preceded that of Bert Neuborne (dating from my first hearing about the Skokie case) and, in fact, I was mocking the "minor 18th century poetry" of the First Amendment for more than a decade before finding out what I was mocking as dangerously utilitarian for the Republican-fascists was being praised by even the revisionist Neuborne. I was using that phrase before I knew there was an internet. I'm going to go through the critique of another ACLU fixture, Stephen Rohde, not to defend Neuborne but to point out some of the idiotic consequences of ACLU style rhetoric and phrasing which has gone from the mouths of lawyers arguing on behalf of the "free press" (I assume for pay) into the mouths of Republican-fascists and fascists and neo-Nazis who are the ones you're most likely to hear those phrases from, these days.
The present day court is using The First Amendment as one of their most potent tools for corrupting our politics with billionaire money, the use of Murdoch style media lies, lies by wannabees in hate-talk-lie-talk media and online and by thousands of others including alleged and actual figures of religion. The First Amendment as written and even more so as interpreted has certainly corrupted perhaps a majority of the U.S. Catholic Conference of Bishops, some of its most prominent members using the "freedom of religion" bit of it to do all kinds of things from discriminating against people to getting people killed in the name of "worship."
As you can see, it's a big topic but I decided to start here:
Is the First Amendment Poetic?
April 8, 2015 • By Stephen Rohde
IN THE NAME OF CELEBRATING what he sees as the music and poetry of the First Amendment, and with impeccable credentials — as former national legal director of the ACLU, founding legal director of the Brennan Center for Justice, and a professor of civil liberties at NYU Law School — Burt Neuborne unexpectedly sounds a sour note by urging courts to significantly cut back on constitutional protection for freedom of expression and to trust the government when it comes to regulating free speech.
Neuborne begins well, imagining that when James Madison crafted the First Amendment in 1789 at the First Congress, as part of what would become the Bill of Rights, he wrote a “textual blueprint for a robust democracy.” Neuborne explains that the thesis of this book, dear reader, is that a careful study of the order, placement, meaning, and structure of the forty-five words in Madison’s First Amendment will trigger a responsive poetic chord in you that will enable us to recapture the music of democracy in our most important political text.
Neuborne continues:
Madison deploys the foundational concepts in his First Amendment on a disciplined inside-to-outside axis, beginning in the two religious clauses with freedom of thought, progressing through three ascending levels of individual interaction with the community — free expression of an idea by an individual, mass dissemination of the idea by a free press, and collective action in support of the idea by the people — and culminating in the petition clause with the introduction of the idea into the formal process of democratic lawmaking. In short, a chronological description of the arc of a democratic idea — from conception to codification.
It’s intriguing to wonder if Madison himself had this progression in mind. But Neuborne declares that this “is not a work of history.” He readily disclaims having any special expertise about Madison’s interior life or his subjective purpose, and does not “claim that Madison himself was wholly responsible for his music.” Curiously, what we do know (as Neuborne himself acknowledges) is that Madison would have preferred to integrate throughout the Constitution the provisions that other drafters eventually organized into a separate Bill of Rights. This established historical fact seriously undermines Neuborne’s premise that Madison rigorously composed the chronological order, placement, and structure of the First Amendment.
Neuborne excuses himself from citing anything in Madison’s writings or speeches or in the writings or speeches of any of his contemporaries or in the work of any historian or legal scholar to support the notion that Madison (or anyone else) placed any significance on the particular order in which the rights guaranteed by the First Amendment are listed.
I will begin my commentary in the sprit of contemporary First Amendment Juris Prudence by asking Who the fuck cares what James Madison, dead for about a hundred eighty years, a vicious slave owner - ALL SLAVE OWNERS HOLDING PEOPLE AS PROPERTY BY VIOLENCE AND THE THREAT OF BODILY HARM AND DEATH AND, WORST OF ALL, THE DISSOLUTION OF THEIR FAMILIES - and a very reluctant "father" of the so-called Bill of Rights to start with, thought about it? I would love to have details of how Madison kept his People-property in shackles for the entire period in which his "Bill of Rights" was the law of the land. His own double-speaking, two-step around the issue would make you wonder why anyone would imagine his own thinking on anything was at all consistent or reliably discerned. Which James Madison would you use to make any kind of an assertion about anything he wrote or said or mistakenly had attributed to him for the purposes of the fucking Supreme Court making unlegislated, non-executive confirmed law on the topic? About the only thing that is clear is that he (as well as the idiotically romanticized Dolly) was primarily motivated BY HIS OWN PERSONAL FINANCIAL INTERESTS, his selfishness in profiting off of keeping and selling slaves, including those both had promised their freedom.
I will note how much time Rhode takes up with this quibble about whether or not Neuborne correctly identified as "poetry" or credited the language of the First Amendment as it stands today to James Madison is a common tactic of dishonest discourse, go for the merely unimportant and insubstantial as a means of attacking the more serious points in something. I'm happy to take up the tactic to point out what's wrong with both of them to show what is wrong with it.
It is sheer insanity to believe that a document, the Constitution, whose own authors, if we can reliably can rely on anything about them, would disclaim had the character of divinely inspired infallible Scripture, (which in the very preface says can be overturned as it fails to protect our lives and our freedoms, as, in fact, it doesn't) should allow those long dead corpses and their far from fixed thought to rule our life instead of our own thinking on the history and hard experience of the regime of law they set into place.
If we need to keep going back to the 1800 or a few years earlier to set the limits on our law and lives now, you wonder why we should have gone to the bother of struggling against slavery, for universal suffrage, for rights of workers, for equality of any kind - all of which the language of the Constitution is used by the Supreme Court and other courts to set back to the status quo ante even now.
Not a single Black Person, other Person of Color or Woman had a hand in the writing, the adoption or or, until much later, the interpretation of The First Amendment. It is not sacred Scripture, it is not handed down by God, it is not in accord with The Law, The Gospel or the Prophets, none of them would have identified a right to lie, as current courts and the ACLU maintain there is.
If is clear that Madison and his fellow founders intended that their violent, vicious holding of Black People in slavery continue as an active and life-long part of their law making regime, we had to fight a terrible Civil War to merely legally end the support of that system, though the Supreme Court and lesser courts reestablished de facto, unofficial though not much less terrible inequality and, in fact, slavery on the theoretically freed Black People in much of the country, even as the Rehnquist and Roberts court are in the active process - along with the unshackled, privileged to lie media, of reestablishing that after the great Civil Rights Movement got an earlier court to reverse that on an all too temporary basis. Using the Constitution of Madison et al as their tool to reimpose Jim Crow jr.
If you think Madison's thought from his least favorable to slavery period, perhaps the 1780s, till his death in 1836 grew and changed for the better, it didn't. That link above shows that:
In 1829, Madison participated in a Virginia constitutional convention convened to decide if non-property-holding citizens should be able to vote—and took the opportunity to argue that African Americans, both enslaved and free, should be part of the count for Virginia’s House of Delegates. He took to the floor to argue that “it is due to…our character as a people, that they should be considered, as much as possible, in the light of human beings, and not as mere property.”[17] And yet, when facing financial strain in the 1830s, Madison did not accede to these principles, instead selling several of his slaves to make financial ends meet—a decision he described as “yield[ing] to the necessity.”[18]Madison’s conflicting views on the institution of slavery manifested in highly contradictory ways throughout his life—from his relationship with Sawney and his emancipation of Billey, to his failure to follow through on his Revolutionary principles or his own moral beliefs. Historians continue to grapple with these paradoxes. Michael Signer recently argued that “Madison applied a different political philosophy to matters concerning the state to those concerning his own house… At the national level … he believed slavery presented an existential threat to a country premised on freedom. At Montpelier, with slaves he felt he treated well, he saw no such conflict.”[19] Similarly, Jack Rakove has claimed that “Madison’s reluctance to challenge slavery outright or in public can thus be explained—if not justified—as a concession to political reality.”[20]
Yet by the end of his life, Madison was no longer even convinced that emancipation was superior to slavery. In 1836, he ended a letter to the Editor of the Farmers’ Register with this unexpected conclusion:
It is most obvious, they [slaves] themselves are infinitely worsted by the exchange from slavery to liberty—if, indeed, their condition deserves that name.[21]
Ultimately, Madison’s personal dependence on slavery led him to question his own, once enlightened, definition of liberty itself.
These lawyers, Neuborne and Rhode, both on behalf of and having a history of working for one of the premier groups attacking the establishment of religion by the government taking this religious view of The First Amendment and The Constitution is more than merely ironic, it is rank hypocrisy. The idolatrous worship of The Constitution and, especially, The Bill of Rights, has ripened into something like an American Imperial pagan cult.
One of the most annoying phrases used by lawyers, by judges by "justices" declaims that "the law" must be "even handed" in its application, though that pose is notably able to obviously impose even the most severe injustices on the losers. We have "justices" on the Supreme Court who can even claim that court filing schedules are sufficient to allow the state to kill an unjustly sentenced man (goddamned Sandra Day O'Conner joining other Republican fascists in that one, as I remember) and imposing the loser of the election of their own political party, keep The People from voting and their votes to count. The Court is not and never has been anything like a reliable dispenser of justice, in most of its history it has been notable for its privileging the privileged, starting with the Supreme Court "justices" who were slave owners and who made many self-benefitting pro-slavery rulings. They are not an institution that is friendly to equality or democracy except on rare occasion and on some of those their "wisdom" has been about as wise as their "justice" tends to be just.
No, no legitimate government can ever take an "even-handed" approach to the truth, to false-witness against individuals and, even more so, racial, ethnic, religious, gender groups, no legitimate government could use "The First Amendment" to privilege and enable those who lie for profit, those who pay them to lie for them in the mass media and on social-disease media. No legitimate government can attack the rights of The People to vote and have their votes counted and determinative of the government that will govern them. Yet the Constitution and, especially, The First Amendment has been used to do all of those and far worse by the courts and beyond. To pretend these are not only serious problems but the very things that are bringing us to fascism by "civil libertarians" has led to me thinking the very conception of "liberty" is, indeed, problematic but for the opposite outcome that Madison came to.
That is the sludgy world of ACLU style discourse on these issues. That is the language of these guys whose ideals are unreliable benefits in the lives of those who they claim to benefit. I have to say that, especially as a witness to the hearings the House Judiciary and Intelligence committees conducted into Trump's trying to get the Ukrainian government to lie to throw the election to him instead of President Biden last year, seeing how it was the diplomats and military officers who stood up bravely as the lawyers of the "justice" department, the FBI, etc. failed to and covered their professional asses, I don't have a very high opinion of the legal profession, these days. Madison wasn't a lawyer, you wonder how these professional lawsters think he's so reliable on the topic of the law as that. I wonder which other non-lawyers they'd give that status to.
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