Monday, September 27, 2004
One Nation, On Your Knees
It’s been a good weekend, a good day back at work, the boss brought some tasty delight back from her vacation in Turkey, and my luncheon salad was delicious, tyvm. I’m looking forward to a relaxing evening of store-bought food and tivo-licious cartoons. But I still seem to have a gripe in my craw, so let me take a moment of THE MAN’s time and see if I can shake it loose.
I’m interested in free speech. This blog, for example, is free. ("Blog Free,” the heartwarming tale of a talentless hack who finds an ironic little essay in the wilds of Africa and raises it as his own? No, more like “The Blog,” the heartstopping tale of a small bit of weak writing gone horribly awry, going gelatinous and gargantuan, taking over vast tracts of my free time and mental ease. But anyway.) I think one of the things most commendable about the U.S. of A. is the notion that, so long as you aren’t hurting anybody, a body can say whatever a body wants to say.
I’m okay with time-and-place restrictions, the doctrine of “fighting words,” commercial limitations and even, to a degree, the paternalistic attitude taken toward some communicative behavior in schools. But in the end, as a general rule, I may not agree with what you say, but I’ll kick some serious ass if anyone tries to keep you from saying it. (This was translated from the French, a language that makes up in subtlety what it lacks in aspirated consonants.)
And of course, just as important if not moreso, is the right NOT to speak. Jews are familiar with this concern, historically having been forced by oppressors to speak against their interests and their hearts for millennia; so often have we been required to enunciate oaths of loyalty to a religion or a monarch – oaths that violate the very essence of the faith – that on Yom Kippur there is a special very old prayer asking to be released from any false oaths one had been forced to make. Freedom means both the freedom to, and the freedom not to. It’s a critical part of making the American dream work – that no one can tell you what to do, or what to say.
But I guess the people representing our national interests in our nation’s gleaming capitol have a different opinion. One particular form of speech is now on its way to being made mandatory, and you won’t have any right to complain about it. It’s not that the courts will rule against you – you won’t be allowed to take your complaint to them in the first place.
That’s right, the courthouse is closed. You are gonna say God Rules This Land and you’re gonna like it. And if you don’t you’re gonna shut up about it. We’ll tell you what to say, and what not to say. And by “we,” I mean, Congress and God.
The problem was that a case that brought this issue to the national spotlight was dismissed earlier this year because the dad didn’t have custody of the daughter whose right not to invoke the deity was at issue. No custody, no standing – that is, no right to bring this complaint to court. Note, please, that the problem wasn’t that this complaint couldn’t go to court – it’s just that this plaintiff wasn’t allowed to do it.
But clearly the lingering threat was too dire for some Replicants in congress. They forced a vote to deny anyone the right to bring such a case in the future. Rep. Todd Akin, R-Mo., who helped write this bill, claims that “activist courts,” by failing to rule clearly that we should all be compelled to identify the one on high by name in the pledge of allegiance, have “emasculated the very heart of what America has always been about.”
First, Toddles, emasculation is not cardiac surgery. I believe there are videos that make this plain, though I’m not sure they let you buy them if you’re a Replicant from MO. (Coincidentally, there is language in the Yom Kippur prayerbook concerning the “circumcision of the heart,” but that gets a bit too philosophical for some of our legislators.)
More importantly, America has always been about “don’t tread on me.” Don’t tell me what to say or think. Keep your guns out of my church, and don’t make me learn your secret handshake. There are no religious qualifications for any public office. But now it seems there is such a qualification for attendance at public schools – and you’ve got no right to say otherwise. Because that’s what America is all about – jamming my god down your throat.
The theory that made our government so stable and responsive for two centuries is that one body makes rules, one body enforces them, and yet another decides how to interpret them and metes out punishment for those who violate them. That’s the separation of powers, and it’s a good idea. This new legislation, some Replicants claim, is consonant with that principle, because the states would still have the power to make their own rules and have their own trials on the matter.
No, no, no, no, no. No. The federal constitution is where the rights to speech – and silence – are enshrined. To remove a whole class of speech-related issues from federal jurisdiction is to do violence to the constitution’s distribution of the powers that the check-and-balance system is supposed to support. Far from supporting federal primacy over those matters reserved to the national government in the constitution, it gives away a critical power that was key to the founders of this great secular country.
The main case here is Marbury v Madison, which goes back to 1803 and provides the basis of judicial review: It is the province of the courts to say what the law is. Congress can write it, but if it violates the constitution, it will not be enforceable; the Executive may enforce it, but if that enforcement violates the constitution or federal statutes, it cannot continue. The courts are the public’s only protection against the tyranny of the “power branches.” They are weak, but effective – so long as they’re left to do their work.
But when congress steals a piece of the court’s right to say what is constitutional, and what is not, 200 years of judicial principle are being flushed down the crapper. Because this time it’s the pledge of allegiance, and next time it’ll be birth control information, and then gay marriage, and then gun rights or the poll tax. There’s no reasoned, logical place for this kind of whittling away of judicial power to stop. Unless it’s stopped before it starts. Actually, that one makes pretty good sense to me.
It’s time for me to leave for the evening, and at home I’ll relax and work up a few photos I took this weekend and generally catch my breath and take a load off. But I just had to complain a little about this political madness that seems to be getting very little press. Anyone who tries to exempt a cause of action from judicial review because it has to do with god is not a conservative, but a zealot. And those are not good people to have running the country.