Notwithstanding the Constitution …

Tuesday, July 6, 1999

With Fourth of July fireworks still flashing in the retinal memory, it is a good time to remember that one of the blessings of liberty is the right to define your freedoms as you wish. Unfortunately, while you're defining your freedoms, a number of our political leaders are busy redefining them.

Thus, when they insist that their latest legislative issue is not about the First Amendment, it generally is.

We've seen numerous examples of this tendency in recent weeks, both in Congress and on the pre-presidential campaign trail. To cite a few: Efforts to amend the First Amendment, to breach the wall separating church and state, and to regulate the content of television, movies, the Internet, and other media.

Most of us are inclined to dismiss such goings-on as a dance that only politicians know the tune to, but we should pay attention because truth and reason, as well as constitutional rights, can be casualties of these political rituals.

An essential element in these rituals, of course, is the assertion that it isn't about the First Amendment, even though it is. Presidential candidate Elizabeth Dole last week demonstrated her familiarity with the game when she called for restricting access to the Internet at public schools and libraries. “This isn't about First Amendment protections,” she said. “It's about values.”

Maj. Gen. Patrick Brady, spokesman for the Citizens Flag Alliance, has mastered the technique also. As he celebrated the recent House vote in favor of the flag-desecration amendment, which would give Congress the power to prohibit acts it deemed insulting to the flag, he said: “Today's vote is a victory for freedom of speech.”

He had taken his cue, of course, from some marvelous rhetoric in the House debate over the flag amendment on June 23 and 24:

“Such legislation would not stop anyone from expressing any idea or opinion,” Rep. Charles T. Canady of Florida assured House members. “We are here today because the Supreme Court, in its mistaken interpretation of the First Amendment, stripped our flag of the protection to which it is entitled.”

“This amendment does not in any way alter the First Amendment,” said Rep. Robert W. Goodlatte of Virginia.

New York Congressman John Sweeney stepped forward to brand anyone who had the temerity to consider the flag amendment a First Amendment matter as guilty of “intellectual snobbery.”

But the flag amendment isn't the only constitutionally suspect proposal put forward in the House of Representatives recently. Apparently concluding that the nation's religious leaders were failing in their responsibility to care for Americans' spiritual well-being, many representatives voted for a resolution calling for a national day of prayer and fasting. Amazingly, the measure fell just a few votes short of the necessary two-thirds majority. Idaho Rep. Helen Chenoweth, seeing no First Amendment obstacle to the resolution, vowed to bring it back.

Then there is Georgia Congressman Bob Barr, who is demanding that the Pentagon rescind its policy of neutrality toward the Wiccan belief. During a recent Cobb County town meeting, Barr said that Wicca was a threat to military discipline that overrode any First Amendment considerations. When asked if he would support restrictions on the Second Amendment right to bear arms, he was not quite so expansive, declaring “The Second Amendment is a personal right! We must narrowly craft any limitations.” A prime example of redefining the First Amendment, this time by implying that freedom of religion is not a personal right.

South Carolina Sen. Strom Thurmond proclaimed his opposition to the military's Wiccan policy, also. “This is an example of going too far to accommodate the practice of one's views in the name of religion,” he said in a statement. Apparently, the First Amendment has changed sometime since 1988 when Sen. Thurmond signed the Williamsburg Charter, which states in its first clause: “Religious liberty, freedom of conscience, is a precious, fundamental and inalienable right. A society is only as just and free as it is respectful of this right for its smallest minorities and least popular communities.”

There are a number of other examples. They cross party lines and political persuasion. But one thing seems sure: This has proved for many political figures to be a win-win-and-win-again approach.

Here is the way it works in the mind of the politician: If real solutions are hard to come by, propose a muzzle rather than an answer. Outlaw uncomfortable media expression, inconvenient religious expression, and incendiary symbolic expression. That should give the appearance of doing something and get you through the next election cycle. Then, when the courts declare such laws unconstitutional, pillory the ungodly and unpatriotic courts and draft another version of the same law. That should be good for yet another election cycle, by which time another First Amendment issue should offer itself up for redefinition and present one more opportunity to flout the Constitution and flog the judges.

It is more than a harmless political game, however. The platitudes and promises involved trivialize public discourse. The cynicism drives common sense from the arena. And the fanning of public fears befuddles the public mind with unconstitutional proposals based in fear and threat rather than reason and facts.

The inevitable result is a mob mentality that tempts us to embrace political demagoguery as a real response to our concerns. The danger, of course, is that we become a thrashing mass grasping one false notion after another. Wrong answers provide fertile ground for problems to grow more intractable, especially if we discard or damage the freedoms that enable the search for real solutions.

The most important of those freedoms, of course, reside in the First Amendment, which has shown a remarkable resiliency against these attacks over the last two centuries. No doubt because of its utter simplicity and its uncommon common sense, it has been able to resist redefinition.

But these are uncommon assaults on First Amendment freedoms, perhaps because so many Americans have been persuaded into thinking that only the speech of “other people” will be restricted, or that it's worthwhile to give up one's own freedoms in a trade for civility and security.

That doesn't quite explain why First Amendment bashing has become such a popular sport among members of Congress, who swore an oath to protect the Constitution. Perhaps they have been looking northward with envy — to Canada, which has an interesting solution to laws that prove unconstitutional. It's called the “notwithstanding clause.” What that means is that if the Canadian courts rule that a law is unconstitutional, it remains in force anyway if the government really likes it.

And so we have it. The First Amendment says “Congress shall make no law,” and the members of Congress still churn them out by the dozens. When all of these things are taken together, it becomes less about redefining the First Amendment than about repealing it.

After that, it should be relatively easy to enact a “notwithstanding clause” of our own. Then the Constitution becomes less of an inconvenience and more of a democratic decoration.

Until then, watch closely the next time you see new members of Congress taking the oath of office and swearing to uphold the United States Constitution. When they raise their right hands toward the Capitol dome, check to see if their left hands are behind their backs with their fingers crossed.

Paul McMasters may be contacted at