Free Speech and the Constitution

James Madison and the Constitution, portrayed in a sculpture at James Madison University in Harrisonburg, Virginia
James Madison and the Constitution, portrayed in a sculpture at James Madison University in Harrisonburg, Virginia

by Kevin Alfred Strom

SOME PEOPLE — most notably lobbyists for the world’s wealthiest ethnic group — would like to see “speech codes,” which make it a punishable offense to criticize persons who belong to certain “protected classes,” enacted into law in the United States.

These pressure groups have already gotten their way in many European countries, and people have gone to jail and had their lives ruined and their families devastated merely for telling the truth as they saw it — for saying that some racial groups commit a disproportionate amount of crime, for example; or for suggesting that some wartime propaganda stories might be exaggerated.

Any attempt to legislate our free speech away — and many have been made — would be unconstitutional and therefore the legislation itself would be illegal. Of course! That’s the way it’s supposed to work in the land of the free.

But absent honorable citizens and honorable judges to bring down such pretended “laws,” the illegal legislation might stand. Many blatantly unconstitutional statutes and illegally adopted amendments stand today. For example, it’s unconstitutional on its face for the federal government to be involved in any way whatsoever with education. Yet its tentacles are now everywhere in education, from pre-kindergarten on up. And it’s obviously illegal under the supreme law for the feds to own or run General Motors. Yet we let it stand.

One of the things that the Founders explicitly wanted to avoid was an omnipotent legislature.

They didn’t want the majority of representatives to be able to make any law that the majority wanted.

They didn’t want the majority of the population to have its way, if its “way” was outside the very limited powers given to the federal government.

They didn’t want the “will of the people” — which just means whatever the unthinking mob thinks it wants at any given moment — to rule. (Contrast that with what Obama and the equally repellent Republicans say almost every day.)

They didn’t want those things because they were against tyranny — and the tyranny of the majority is every bit as bad as the tyranny of a king or dictator. That’s why we have the Bill of Rights and that’s especially why we have the Tenth Amendment.

In addition to restoring the authority of the Constitution, I’d enjoy seeing a mechanism that would severely punish legislators who knowingly introduce or otherwise support legislation that is unconstitutional. It would make the bastards a lot more careful. The executive and judicial branches, when complicit, should not be immune, either.

Of course, if “speech codes” or other kinds of tyranny were introduced by successful amendment of the Constitution, they would become constitutional by definition.

And when zealots, politicians, criminals, and the media conspire together it’s possible to get amendments illegally adopted, as the 14th Amendment certainly was. John Curran was right. Eternal vigilance is the price of liberty.