Getting it right on the First Amendment

In his op-ed on the First Amendment,1 Rich Oppel commits two errors, the first fundamental, the second seemingly minor, but both revealing of the difficulty in educating Americans on the principles of constitutional republican government.

First, the seemingly minor error. He asked, “Can the government censor the Internet?”. An English teacher would remind him that the correct word is “may”, not “can”. The question is not about physical ability but legitimate authority. Of course, government may not censor the Internet. However, we can also ask whether it can, and the answer is also no. Several repressive governments have tried and failed. The Internet was designed to survive nuclear war. It routes around censorship like any other errors.

Second, the fundamental error is found in his statement that “First Amendment rights ... could be withdrawn or curtailed by amendment of the Constitution.” The error lies in regarding rights as deriving from the Constitution as the source. The rights recognized in the First Amendment precede and are superior to the written Constitution of government. While it would be possible to adopt an amendment that would seem to curtail those rights, such an amendment would itself be unconstitutional, and the rights would continue even if their exercise were threatened by official repression.

There are actually three constitutions. The third is the written Constitution of government, framed in 1787, ratified in 1789, and subsequently amended.

The second is the unwritten constitution of the society, arising from the social contract that created the society, obliging its members to mutual defense of one anothers' rights, and involving decision by deliberative assemblies or conventions called by due public notice and conducted by established rules of procedure. It was such conventions that established the written Constitutions of governments, both federal and state.

The first is the constitution of nature, the elements of which are the laws of nature, the nature of human beings and their situation in the universe, and the constraints those things put on what is rational for humans to do. Ancient political philosophers wrote of “natural law”, and theologians identified it with “God's law”, but whether one discusses the principles in natural or theological terms is a matter of personal preference.

A well-framed constitution of government must conform to the superior constraints of first, the constitution of nature, and second, the constitution of the society. Provisions or amendments not derived from or in conflict with them are unconstitutional, just as are statutes not derived from or in conflict with the written constitution of government. “Unconstitutional” means lacking in legitimate authority, even if enforced by physical compulsion.

Each of these constitutions are the sources of their own rights. From the constitution of nature we get the rights of life, limb, and liberty, and the means to secure them, such as arms. From the constitution of the society we get the right to title to property and the rights of due process. From the constitution of government we get the rights of denizenship, including the rights to remain on and return to the location of our birth, and citizenship, including the rights of voting and holding office.

Due process does allow for the exercise of a right to be “disabled”, or restricted, either to resolve conflicts in the exercise of rights that infringe on one another, to protect innocent individuals from harm, or as punishment for an offense. It also allows such exercise to be waived temporarily in a particular proceeding. But disablement or waiver is not removal of rights, the exercise of which can be fully restored by the removal of the disablement or waiver.

Therefore, any amendment to withdraw or curtail the rights of assembly, petition, speech, press, or religion would be as unconstitutional as would an amendment to require objects to defy the law of gravity or make two plus two equal five. Only changing humans into a very different kind of being would allow that.

We need to convey a deep understanding of “legitimacy” or “legitimate authority”, and how it can descend or not by a logical chain of derivation from superior laws like the Constitution to lower level acts of officials. We need teach that law is not just whatever official like judges do, or can be expected to do, or can get away with doing, but what they are authorized to do, and that legitimacy does not stem just from the results of the last election, but from the original historic act of ratification of the written Constitution of government, amendments thereto, and the admissions of each state.

Jon Roland is founder and president of the Constitution Society with a website at http://www.constitution.org


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