This is the nineteenth in a series on The Harvard Classics; the rest of the posts are available here. Volume IXX: Faust Egmont, Etc., Goethe, Doctor Faustus, Marlow
The First Amendment to the United States Constitution states:
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.
In that one sentence, the framers memorialized several of the “inalienable rights” central to the premise of the Declaration of Independence and the founding of the nation. Yet, despite how concise the amendment is, people seem constantly to misapprehend its significance. Here are a couple of critical points where people are often mistaken.
1. The amendment only applies to government action. People constantly confuse their right to free speech with a right to be free from the private consequences of that speech. A speech code by a company or private school is not subject to First Amendment analysis. Likewise, a private club may have religious requirements that a government actor may not.
2. That doesn’t mean that other laws do not matter. Some people on the internet hold the idea that “the First Amendment stops the government from infringing on your free speech, but it doesn’t stop me from punching you in the mouth.” Although that statement is technically accurate, punching somebody in the mouth violates laws independent of the First Amendment. Additionally, civil rights laws, government licensing requirements, and so forth may create obligations for private individuals or companies not to discriminate based on the exercise of certain First Amendment rights.
3. The amendment applies to all government action, not just the federal government. The plain of the first amendment states that “Congress shall pass no law…”; it does not mention state governments. However, a long series of Supreme Court cases has established that the First Amendment (and most of the rest of the Bill of Rights) applies to state action through the “incorporation doctrine”. Even so, the First Amendment is probably redundant in most cases. Each state has its own constitution, and each state constitution includes free speech clause. The New York Court of Appeals, for example, has held that the free speech clause of the New York Constitution provides a greater level of protection than the First Amendment.
4. “Speech” consists of a lot more than just talking. Supreme Court cases have held that the First Amendment’s speech clause protects “expressive conduct.” That can mean a wide range of actions, including burning the American flag, nude dancing, remaining silent, or cross burning.
5. The amendment is especially important because it protects those without political clout. As a practical matter, no government would ever need to be restrained from punishing pro-government speech. Likewise, statements that everybody agrees with are under no threat of suppression. It is the provocative, the unpopular, the revolutionary that needs to be protected. Minority religious groups and others who are heterodox in the myriad ways that people may stray from conventional norms are the people who have the most to fear from popular government, and the most need for an amendment that protects, above all, the freedom of the mind.
Beer of the week: Primus – This week’s reading is set in what is now Belgium, with the principle action taking place in Brussels. So despite the constant references to “Netherlands” and “Netherlanders”, the play is best paired with Belgian beer. Primus is a “premium lager” from Haacht Brewery in Flanders, Belgium. It is a standard European lager; it looks good, smells good, and tastes good. It is a well-balanced, if unexceptional, beer.
Reading of the week: Egmont by Johann Wolfgang von Goethe – In this scene, we learn that the Spanish governor of the Netherlands, the Duke of Alba, “published a decree, by which two or three, found conversing together in the streets, are without trial, declared guilty of high treason.” He also prohibited discussion on affairs of state and made criticism of the government a capital offense.
Question for the week: How many rights are in the First Amendment?
Some “small-government” and “states’ rights” proponents are less cynical, and even defend the failed Confederate States on the grounds that the CSA were motivated by self-determination, states’ rights, and principled politics. But do the historical documents bear that out?
Beer of the week: Slow Ride Session IPA – To avoid (additional) needless controversy, I have paired this reading with a beer from a Colorado, which was not yet a state during the brief existence of the CSA. New Belgium’s session IPA is quite good. My 12-pack seems to have been over carbonated; every can foamed over when opened. Otherwise, there is nothing to complain about. The beer is a hazy orange-yellow with lots of white foam. Some yeasty aroma makes it past the strong, citrusy hops smell. The flavor is not as strong as expected, but it is nicely balanced and refreshing with a nice citrus finish. One certainly could drink this beer over the course of a long session.
Reading of the week: The Constitution of the Confederate States of America – This is the kind of thing that every middle school student in the United States should be required to read in history class. It did not even occur to me that I should read it until I was in my late twenties. It is instructive as to the causes of the Civil War, but also a useful tool for evaluating the Constitution of the United States.
Question of the week: There are some other changes worth mentioning: the CSA president would have served for 6 years with no chance for reelection. Also, all bills passed by congress would have a single purpose (eliminating omnibus bills and unrelated riders.) Finally, the president would have the power to issue line item vetoes. Are any of the changes made by the Confederates worth considering as amendments to the Constitution of the USA?
Today, the City and people of Chicago celebrate Casimir Pulaski Day. Pulaski was a revolutionary in his native Polish-Lithuanian Commonwealth. After his faction’s defeat in the War of the Bar Confederation, Pulaski moved to the Americas and continued his work as a freedom-fighter. He, along with Hungarian Michael Kovats, reformed the Colonial Cavalry and died in combat against the British. Chicago’s connection to Pulaski is one of shared heritage; the Polish population of Chicago is reportedly the largest of any city other than Warsaw.
Holidays, whether official or not, are important for people. They should allow people to reflect on and celebrate the important things in life. Since St. Martin’s Day in November, I have tried to find ways to celebrate every day for the myriad gifts I’ve received. Pulaski Day provides a convenient excuse to lift a glass in honor of the things that make life good. From pierogi and beer to brave patriots like Pulaski himself, the Polish people have given America and the world a number of cultural gifts. Pulaski Day is an opportunity to reflect on and celebrate those gifts.
So, here’s to Brigadier General Casimir Pulaski and all of the Polish immigrants who did their share to make this country great! Na zdrowie!
Beer of the week: Kujawiak Export Beer – Although this beer is Polish, it reminds me of Korea. Something in the aftertaste of Kujawiak reminds me of nurungji, the rice that burns to the bottom of the pot. Koreans make tea with this scorched rice and even make candies in nurungji flavor. Kujawiak is a pretty, highly carbonated, golden beer. It smells of sweet malt. Aside from the burnt rice aftertaste, there is not a whole lot of to this beer. I am about equal parts confused and pleased by Kujawiak.
Reading for the week: The Constitution of May 3, 1791 – Although Pulaski did not live to see it, the Polish-Lithuanian Commonwealth adopted a written constitution in 1791, considered to be the second constitution of its kind (after the American Constitution.) The Constitution established the Catholic Religion as the official religion of the state, but “guarantee[s] freedom to all rites and religions”. It also affirmed the obligation of the nobility to protect the peasantry, out of “justice, humanity and Christian duty,” as well as the nobility’s “own self-interest properly understood.”
Question for the week: What does Casimir Pulaski Day mean to you?
One important rule of history that ought to be remembered is that it is written by the victors. In middle and high school, American students are taught that The Articles of Confederation were inadequate to provide for the governance of the young country. If the school is particularly good, the students read The Constitution and even some of The Federalist Papers. As far as I know, no students read The Articles of Confederation or The Antifederalist Papers. But why would they? The ideas and principles behind those works lost out.
It is also worth noting that The Antifederalist Papers were not a comprehensive project in the way that The Federalist Papers were. Hamilton, Madison, and Jay had a plan that resulted in an organized and cohesive collection of articles addressed to a single state. The Antifederalist Papers, on the other hand, were written independently by an unknown number of authors, addressed to the peoples of several states without any overarching plan. They don’t read as a single work because they were never meant to be grouped together.
Additionally, a large portion of the complaints about The Constitution were rectified by the Bill of Rights. That can make reading the Antifederalists a bit confusing for a modern reader. But it also puts a new spin on the question of what ideology won the day. Every complaint that was addressed by the Bill of Rights is really a victory for the Antifederalists. They recognized dangerous flaws in the new Constitution and made them known. As a result, Amendments were written to memorialize and protect inviolable personal rights.
Aside from concerns about personal liberties, the Antifederalists also worried that a central government would engage in dangerous expansionism, wage wars abroad, and eventually wage war at home to bring recalcitrant (or as they saw it, independent) states to heel. A critical glance at any work on American history should be enough to answer the question of whether these fears ever came to fruition. Although (because?) history is written by the victors, history is no more than “a disgusting and painful detail of the butcheries of conquerors, and the woeful calamities of the conquered”. When the people are happy, free, and at peace, there is very little to fill the annals; “the silence of historians is the surest record of the happiness of a people.” So why are American history books so thick?
Beer of the Week: Lionshead Deluxe Pilsner – When I first had this beer, local college students told me that it is better known as “Lionshead-ache” because of the hangovers it causes. To be fair, they were in college and Lionshead is very cheap, so the hangovers may have been more related to quantity than quality. As far as taste goes, it is pretty much what one should expect for such a cheap adjunct lager: it tastes of slightly sour grain and naught else. But the bottle caps have pictogram puzzles printed on the inside, so I would certainly take a bottle of this over comparable beers. If you really want to try out the pictogram puzzles but can’t get Lionshead, puzzles can also be found on the bottle caps of Mickey’s and National Bohemian.
Reading for the Week: Antifederalist No. 3 – A number of essays opposed to the new government were compiled and numbered. Although they were not originally meant to be part of an overarching project, these individual writings have come to be known by their respective numbers in this compilation. Antifederalist No. 3 does not actually seem to be aimed at fighting the ratification of The Constitution. The author ruefully concedes that the people desire this new governmental scheme. The new national government will be accepted, not because it is the best possible system, but because the American people are simply and regrettably not up to the challenge of local self-rule: “Alas! I see nothing in my fellow-citizens, that will permit my still fostering the delusion, that they are now capable of sustaining the weight of SELF-GOVERNMENT: a burden to which Greek and Roman shoulders proved unequal.”
Question for the week: The author of Antifederalist No. 3 writes that “Where the people are free there can be no great contrast or distinction among honest citizens in or out of office.” What does it say about the United States that politicians are essentially celebrities?