What is most shocking to me is how simple and straightforward language has been maligned over the years, and continually evolves in interpretation – even with considerable writing of the era as to the intent of the language. The First Amendment 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 to peaceably assemble, and to petition the Government for a redress of grievances.”
Without being a scholar on the prose of the era, I still believe it is easy to recognize (especially considering that they had just concluded a revolution) that the Founders intended for a literal interpretation of the above. That is, the Government has no authority to meddle in religion, speech, the press, or assembly (i.e., gathering of persons). Yet, all three branches of government continually abridge these most sacred rights.
One of the most recent examples is the “hate speech” concept. I’m not as concerned with the “politically correct” ramifications of hate speech, but I am very concerned with the Courts upholding laws that add stiffer penalties to a person’s political motivations. That is, if in the act of committing a crime a person makes it known that the crime was committed because the victim was a member of a recognized protected class (e.g., Jew, black, homosexual, etc.), then the penalty of the original crime is somehow more severe. Consider two crimes committed:
1. A man breaks into a house and steals $5,000 in cash. In this case the man is white and he stole from a Jew. At trial the man claims he had a right to do so because Jews have stolen all of his money.
2. A man breaks into a house and steals $5,000 in cash. In this case the man is Native-American and he stole from a white man. At trial the man claims he had a right to do so because whites have stolen all of his money.
Both cases should be treated equally in the eyes of the law. Both men are guilty of committing a felony, and both men made political (or politically correct version “racist”) statements at trial. The problem, from a logical and Constitutional perspective, is that both men will be treated differently at sentencing. In the first example, the criminal will receive a more sever sentence because he was also found guilty of a “hate crime.” In the second example, the criminal will receive a “normal” sentence (or even possibly a reduced sentence because or reparation) for the same crime.
This sentiment is not just my own, but expressly stated by the Court. In Texas v. Johnson, Justice Brenan writing for the majority, the Court stated, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Yet, we continue to allow the Government to do so.
The most agonizing infringement, however, is that we have continually allowed the Government to make laws and rules abridging the right of the people to peaceably gather. Even if we ignored the facts of the era (i.e., that the colonists had just overthrown a previous government), the words themselves are quite clear. The Government may not prohibit people to come together; but, try getting a several hundred of your friends and make a march on city hall. It is almost guaranteed that there is a city ordinance (or a state statute) that requires a large group to have a permit to assemble, so you can be arrested and charged with a crime. The whole point of this right was so that we could assemble to remind the government that they work for us. For as Jefferson so eloquently stated,
“…what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? let them take arms. the remedy is to set them right as to facts, pardon & pacify them. what signify a few lives lost in a century or two? the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it's natural manure…”