Balkinization (a pun based on a chief originator, Prof. Balkin) is not much for comments these days, so threads that do allow them tend to be more so inclined to go on tangents or bring up other issues (including those covered by posts that don't have comments, sometimes because the person were tired of some trollish back/forth in the past). See, e.g., this one on a fear of a "runaway convention" if we ever (per Art. V) have an open state convention to propose amendments to the federal Constitution. "Shag" at one point referenced the 1A:
Text and history does not guarantee anything here -- it provides an opening and device to use when making choices. Honesty warrants that the meaning of the text, be it constitutions or fictional works, have various possible meanings. The text of political documents often is carefully chosen in part because it provides a means to obtain agreement from different groups that understand what it means in somewhat different ways. Still, text and history matters, particularly as a sort of "Overton Window" to reduce choices. It changes the conversation some.
There is a "freedom of speech." Congress can not pass a law "respecting" an establishment of religion. It can't "prohibit" the free exercise of religion. etc. Compare two provisions from Oregon's Constitution:
The provision still is different from the others since a certain category is blocked ("respecting") while Congress could in some fashion regulate speech but not in a way that abridged its freedom. "Freedom" might suggest certain terms though, like "liberty" might not merely mean "license." "Speech" itself might not merely mean "verbalization." Is libel protected "speech" or unprotected license? Finally, "prohibiting" free exercise is not the same thing as merely burdening it in some fashion which by the nature of government, is going to occur somehow.
The same with the free expression provision. "Freedom of speech" suggests something a bit less than banning any regulation of speech itself (while "the abuse of this right" also opens up a loophole in the state analogue). So, Zephyr Teachout's book noted that in the late 19th Century, the Supreme Court recognized various forms of paid lobbying as against the public interest and thus such lobby contracts need not be honored. As with Justice Scalia not using mistreated Catholic school children as a reason to be careful about state authorized prayer in schools, the use of history here often is selective. Law office history.
But, history should guide us some here, a complete history. We live today though. Our needs and understandings should ultimately guide us when we continually try to apply the text of all sorts of things the best we can.*
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* An early Christian handbook, likely influenced by Jewish thinking that went back further, at one point noted:
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.Burt Neuborne's recent book relied on the text of the Bill of Rights specifically to argue for a certain sort of progressive vision. Text and history (along with other things) need not only be used for conservative ends here. Prof. Amar, e.g., has written a lot using such techniques to raise some intriguing (if not always convincing) arguments, at times using the same "it's pretty obvious" tone of some conservative originalists. For instance, he suggested the Thirteenth Amendment can be used against child abuse, since it is a form of "slavery" and/or "involuntary servitude." Others, including Balkinization contributor Andrew Koppleman has used that amendment to protect abortion rights.
Text and history does not guarantee anything here -- it provides an opening and device to use when making choices. Honesty warrants that the meaning of the text, be it constitutions or fictional works, have various possible meanings. The text of political documents often is carefully chosen in part because it provides a means to obtain agreement from different groups that understand what it means in somewhat different ways. Still, text and history matters, particularly as a sort of "Overton Window" to reduce choices. It changes the conversation some.
There is a "freedom of speech." Congress can not pass a law "respecting" an establishment of religion. It can't "prohibit" the free exercise of religion. etc. Compare two provisions from Oregon's Constitution:
"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."The second is what is sometimes known as a "Blaine Amendment," the leader of a post-Civil War movement (at the time influenced by rise of Catholicism) against public financing of religious schools. It also reflects the druthers of James Madison, a primary voice behind the federal First Amendment. But, that one wasn't as specifically phrased. It left it much easier to allow legislative chaplains (paid out of government funds) and various types of spending on sectarian schools (particularly if tied to students themselves), even if the language arguably would not allow that.
"No money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly."
The provision still is different from the others since a certain category is blocked ("respecting") while Congress could in some fashion regulate speech but not in a way that abridged its freedom. "Freedom" might suggest certain terms though, like "liberty" might not merely mean "license." "Speech" itself might not merely mean "verbalization." Is libel protected "speech" or unprotected license? Finally, "prohibiting" free exercise is not the same thing as merely burdening it in some fashion which by the nature of government, is going to occur somehow.
The same with the free expression provision. "Freedom of speech" suggests something a bit less than banning any regulation of speech itself (while "the abuse of this right" also opens up a loophole in the state analogue). So, Zephyr Teachout's book noted that in the late 19th Century, the Supreme Court recognized various forms of paid lobbying as against the public interest and thus such lobby contracts need not be honored. As with Justice Scalia not using mistreated Catholic school children as a reason to be careful about state authorized prayer in schools, the use of history here often is selective. Law office history.
But, history should guide us some here, a complete history. We live today though. Our needs and understandings should ultimately guide us when we continually try to apply the text of all sorts of things the best we can.*
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* An early Christian handbook, likely influenced by Jewish thinking that went back further, at one point noted:
For if you are able to bear the entire yoke of the Lord, you will be perfect; but if you are not able, then at least do what you can.The word "Lord" might be used metaphorically, if you wish, but think this is fairly good advice generally speaking.
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