[homer] Mmmmmm......frEEEdom. [/homer]

[Marge] Homer, are you sure this paper barrier is safe?

For once I agree with Mr. Cohen. People who think the Constitution and particularly the Bill of Rights guarantees freedoms has failed to understand the basic purpose of the document.

David Cohen:

Please explain. Are you making a distinction between "rights" and "freedoms"? Is this perhaps related to OJ's position that the Bill of Rights was repetitive, being a late add-on?

Matt: It's multilayered.

The first layer is that, even on its own terms, the First Amendment only limits "Congress."

The second layer is that, even if we accept that the Constitution protects substantive freedoms of speech, press, religion and petition, it is the Fourteenth Amendment that does so.

The third layer is what the other commenters have noted: if push comes to shove, a piece of paper isn't going to matter much.

The fourth layer is most important: Americans are free because each generation chooses to be free.

Matt: It's multilayered.

See? It's just WAY easiser to remember cartoon characters.

Actually, one could do worse than watching The Simpsons to learn about the Constitution. Some excerpts from the opening where Bart writes on the blackboard:

I will not yell "Fire" in a crowded classroom.

I will not hide behind the Fifth Amendment.

Spitwads are not free speech.

The First Amendment does not cover burping.

the First Amendment only limits Congress

Explain that to McCain and Feingold.

Me lose brain. Uh-oh.

David Cohen:

I get your last two points, but they seem like nitpicking in the face of a larger reality. Guarantees usually are contingent on the guaranteer being honest, and the receiver of the guarantee taking it seriously and following up on it -- yet nobody says "guarantee" isn't the right word to use in a business transaction as opposed to Constitutional law. Of course guarantees depend on people taking them seriously, which is why the Soviet constitution wasn't worth the paper it was printed on.

Your first two points make considerable sense, but since the fourteenth amendment only extends the reach of the first (and some folks, i.e. Raoul Berger, take issue with fourteenth amendment interpretation), it would be like saying: "the first amendment, as modified by a later amendment, guarantees the following...". Most folks just say "first amendment" in the interest of being brief, assuming it covers all the later changes.

don't forget the educational cartoon that Bart and Lisa watch in one episode:

Amendment:
I'm an amendment to be
Yes an amendment to be
And I'm hoping that they ratify me
There's a lot of flag burners
Who have got too much freedom
I wanna make it legal for policemen to beat 'em
'Cause there's limits to our liberty
At least I hope and pray that there are
'Cause those liberal freaks go too far...

Boy: But what if people say you're not good enough to be in the Constitution?

Amendment: Then I"ll crush all opposition to me, and I'll make Ted Kennedy pay, if he fights back
I'll say that he's gay.

John Resnick:

I saw the article on townhall.com so I read the list of freedoms in the first paragraph, but I'm confident if I'd been asked these questions about the First Amendment and the Simpsons, I'd have gotten them both right (although you'd need to give me a minute to recite the First Amendment in my head).

The article on Townhall said only one in a thousand people can name the five freedoms (okay..."freedoms"), but for what it's worth, I'm betting quite a few folks on this site could name them.

Shelton:

One of my favorites!

Remember the question Krusty asks the little girl in the beauty pageant?

Krusty: Would you say the Bill of Rights is a good thing, or a baaaad thing?

Girl: Ummm...[couple seconds pause to think]...good thing!

Crowd: Awwwww!

Matt: Probably true. But then, as David points out, naming the five Freedoms™ is kind of a trick question, right? Sort of like: Where does Homer “work”?

John Resnick:

Hmmm...so those who didn't know any of them are right?

John Resnick:

By the way, don't you think at least some people assumed that the right to petition government for redress was bound up with the right to assemble, and thus only named four of the "freedoms"? The wording of the First Amendment virtually treats them like they're the same thing.

Heck, let's look at the exact wording:

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.

If they're separating assembly and redress into two rights, then "respecting an establishment" and "prohibiting the free exercise" should be two as well. That's a total of six.

Bart (paraphrase): Can I get an automatic rifle with armor-piercing bullets?

Homer's brother: It's in the Constitution.

Those freedoms come from God. The First Amdt. is a societal contract in which we have forbidden Congress to limit those God-given freedoms. The Second Amdt. is the guarantee.

Matt: My theory of the First Amendment spelled out in excruciating detail. The shorts answers are, first, that America had these freedoms before they were constitutionally protected because Americans want them and value them. Second, that the Fourteenth Amendment (really, the incorporation doctrine) effected a real substantive change. Before the court adopted incorporation, speech, etc., was not substantively protected. Afterward it was.

David Cohen:

I haven't yet read your entire essay so forgive me if I'm misunderstanding you, but as I read your point it seems you're arguing that these rights existed prior to the Constitution because of the American mindset, but also that they didn't really exist until after the Civil War.

Matt: Hmmm, then I must have written badly because that's not what I intended. What I meant to write is that the federal constitution does not protect free speech, et al. The First Amendment clearly does not, because it only regulates Congress. The Privileges and Immunities clause doesn't because it only protects "privileges" citizens of the United States have as citizens of the United States. In other words, there must be an independent source of the privilege in the constitution and there's not. The Due Process clause fails for the same reason, and because it only says that, before a liberty can be taken way, you must have due process of law. That implies, again, that freedom of speech, for example, can be taken away. Moreover, all laws infringe on liberty -- that's more or less what law is -- and the process one gets is sufficient. (I'm saying, in effect, that there is no substantive due process.)

The reason this matters -- the reason that it is not just quibbling -- is that the truth is better than the lie. Americans don't have freedom because the voracious majority is restrained by a document as interpreted by the Olympian nine. Americans have freedom because they choose freedom and value it.

The best example of this is church establishments. The federal Constitution could hardly be clearer that the question of establishments is up to the states free from Congressional interference. "Congress shall make no law respecting an establishment of religion." Congress can't establish a federal church, Congress can't interfere in a state establishment, Congress can't legislate on anything "relating to" establishments. At the time of the enactment, several states had established churches. All of them got rid of their establishments voluntarily, Massachusetts being the last in the early 1830s, at a time in which everyone agreed that the states had a perfect right to have an established church. The people chose disestablishment because they valued freedom, not because the choice was forced upon them.

What's wrong with this reasoning?

Focussing on what is referred to as Freedom of Speech. (1) Freedom means absence of restraints. (2) First Amendment prohibits such restraints and guarantees it. (3) hence we have freedom of speech, guaranteed by the 1st amendment. (true that would be applicable only to the citizen vs federal govt, but same reasoning would apply to the fifty states which have similiar language.

Establishment of religion is as David said, assuming he's rejecting present prevailing Supreme Court rulings and looking at the issue tablu rasa.

The reasoning regarding press, assembly, petition should be viewed the same as speech in the first paragraph.

Matt Murphy wrote that:

Congress can't establish a federal church, Congress can't interfere in a state establishment, Congress can't legislate on anything "relating to" establishments.

Fred writes:

Was the 1865 bill that authorized the U. S. mint to declare the people’s trust in God on the nation’s coins an establishment of religion?

Matt Murphy wrote that:

At the time of the enactment, several states had established churches. All of them got rid of their establishments voluntarily, Massachusetts being the last in the early 1830s, at a time in which everyone agreed that the states had a perfect right to have an established church.

Fred writes:

Which states do you claim had established churches by law at the time of the enactment?

Massachusetts did not have a legally established church after 1780. It only had an establishment by law of the duty to contribute to the financial support of the Protestant religion. There was no establishment by law, even in New England where Counterfeit Christianity prevailed, of any religious opinion or belief or mode of worship or manner or method of discharging one’s duties to his Creator.

FVF

Fred: I think that you're confusing Matt and me.

"Establishment" means a tax-supported church, but Massachusetts' constitution also stated:

As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

And the people of this commonwealth have also a right to, and do, invest their legislature with authority to enjoin upon all the subjects an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend.

Provided, notwithstanding, that the several towns, parishes, precincts, and other bodies politic, or religious societies, shall, at all times, have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance.

And all moneys paid by the subject to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any on whose instructions he attends; otherwise it may be paid towards the support of the teacher or teachers of the parish or precinct in which the said moneys are raised.

Any every denomination of Christians, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law.

Certain elected officials were also required to swear that they were Christian. The state was more or less willing to accept any "Protestant," but that doesn't mean that there wasn't an establishment of religion.