Wednesday, May 01, 2019

A New United States Constitution, Part I

In recent years, a number of people and groups from across the political spectrum have called for amendments to the constitution on a variety of topics. This is nothing new. There have always been calls for amendments to the constitution. Sometimes (though not often), they even get passed.

But I think it's time for a whole new constitution. I mean completely rewriting our constitution to reflect the modern issues affecting 21st century America. I've been thinking along these lines for several years now. We need to call a constitutional convention.

Trying to fit 21st century problems into an 18th century legal document is a bit like trying to put a square peg into a round hole. It just doesn't work, and if you force it, it's all stupid-looking and probably won't last very long.

Our constitution is hopelessly outdated. But we treat it as though it's just one very, very small level below sacred scripture. Like the Bible, we treat the constitution as somehow inviolate and sacrosanct, the final and inerrant Word of the Founding Fathers, who themselves are frequently treated as mini-Christs. I've written about this before. It's the Doctrine of Constitutional Infallibility, and it's deeply ingrained in the American psyche.

The Constitution was written in the 18th century, addressing 18th century problems that were unique to a small, rural, coastal nation that was just starting out.  It's woefully inadequate to address the issues of a massive country that is the world's largest economy and superpower.

But I'm really not here to convince you we need a new constitution. I actually want to talk about what a new constitution would look like.

Now, I'm no political philosopher. I'm not a lawyer, a legal expert, or trained in constitutional law. And I'm not pretending to be. But I do have some ideas for a few changes we need to make. In this series of articles, I intend to outline a number of proposals that I think would make for a better constitution and, subsequently, a better society to live in.

In Part I, we're going to look at the First Amendment. 


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.

Freedom of Speech

Everybody loves the First Amendment, right? Freedom of speech, freedom of the press, freedom of religion. It's all hunky-dory, cum-ba-ya, American Pie stuff.

But there has long been one acknowledged problem with freedom of speech in particular: it protects hate speech too. As recently as 2017, in an unanimous Supreme Court decision affirming that hate speech is constitutionally-protected, Justice Samuel Alito wrote: 
[The notion that the government can restrict] speech expressing ideas that offend ... strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech ... is that we protect the freedom to express "the thought that we hate."
Most people agree: in order to have freedom of speech, you have to allow people to say offensive stuff too.

My question is this: Has anyone ever stopped to ask if this is ACTUALLY true? Is there some philosophical, legal, or social reason why we can't outlaw hate speech while still having freedom of every other kind of speech?

The first change we need to make in our new constitutional convention is to rewrite the First Amendment to specifically and categorically ban hate speech and, especially, hate groups, including the rights of those groups to assemble.

The typical argument against this is that it would create some sort of slippery slope - that if we started banning offensive speech, then we might somehow slide slowly and surely into tyranny. Justice Anthony Kennedy made this point in the same 2017 case mentioned above: 
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
I'm not suggesting that we ban "offensive" speech. Instead, I'm specifically talking about speech that is intentionally and specifically used for the purpose of spreading hatred against other people or groups of people. 

I'm also not talking about what you do or say in private. I'm not suggesting that if you use the n-word in your own home, someone should be able to report you to authorities and have you fined. I'm not even saying that if you go out in public and call someone the n-word, you should be able to be fined for that. 

I'm talking more specifically about hate groups that seek to spread a message of intolerance and hatred towards other people. Think of white nationalists/supremacists, certain Christian, Muslim, and Jewish separatist groups, Neo-Nazis, the KKK, etc. Basically, any group recognized as a hate group by reputable organizations that track such things. 

Is there any reason on earth why freedom of speech has to mean these sorts of groups can exist? Why would banning their right to meet, march, protest, advertise, put up signs, hand out pamphlets, have a website, or use social media mean that somehow our society was going to devolve into tyranny? That's abject nonsense. 

And it's proven by the fact that numerous other democratic, industrialized nations have such bans on hate speech and hate groups and somehow they've managed to not descend into chaos. In Germany, for instance, Nazism is illegal. You can't wear a swastika, you can't promote Nazi ideology, and you can't even deny the Holocaust. Yet, magically, Germany is still a free democracy! Furthermore, virtually every country in Europe, plus a bunch of others around the world, ban hate speech outright. Guess what? Their citizens are still free!  

It's part of the Doctrine of Constitutional Infallibility that somehow you can't have freedom of speech and also ban hate groups and hate speech. It's American mythology. It's an American lie. 

We already ban some forms of speech. Walk into a crowded theater and yell "ACTIVE SHOOTER!" if you'd like to test those bans. Slander and libel laws are also examples of how speech is limited in this country. Outlawing hate speech and hate groups would go a long way towards solving some of the problems in this country, and there is not a shred of evidence to suggest it would lead us into a loss of our free democratic principles.

Separation of Church and State

Freedom of religion is also enshrined in the First Amendment, and legal precedent based on that freedom has led to the notion of separation of church and state. That phrase, however, is not actually in the constitution or the text of the First Amendment. I think it would be beneficial to alter the wording of the religion clause to specifically note that there is a firm and unbreachable divide between church and state, between government and religion. 

Government can not touch religion (unless it's a hate group or doing other illegal things) and religion can not touch government (meaning you can't legislate your religious beliefs). 

I would also like to see a clause expressly forbidding churches from having any sort of involvement whatsoever in politics, including especially political lobbying. Religious political lobbying has had an enormously detrimental effect on American society in the last 40 years, and should be completely outlawed. Religious groups don't pay taxes. They therefore should have absolutely no right to directly influence public policy through lobbyists.


Thoughts? Opinions? Agree or disagree? Would you change anything else in the First Amendment?

In Part II, we'll look at changes I'd like to see to the Second Amendment. That should be a fun discussion.

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