1st Amendment?

[Commodore]

Does the 1st Amendment really grant the sweeping freedoms we think it does? I ask because I was thinking about it and realized the 1st Amendment starts with the words " Congress shall make no law". Now if we take that as written, it would seem all the pro 1st Amendment rulings made by the Supreme Court might be wrong. As written, it would seem that federal, state, and local governments can limit the rights outlined in the 1st Amendment up to and including outright and indefinite suspensions of those rights as long as it doesn't come from the legislative branch. So if the president or a governor wanted to, say, issue an executive order banning the worship of a certain religion or establishing a state religion, it would seem such an executive order, technically, wouldn't be a violation of the 1st Amendment. It might be illegal for other reasons, but not on 1st Amendment grounds.

Or, instead of such drastic measures, the various government departments were suddenly given the same latitude to fire people based on what they say, their political opinions, etc. that private corporations have. Right now that can't happen because that is generally seen as a 1st Amendment violation, but most government departments fall under the executive branch, not the legislative branch, and thus should technically be allowed to limit the exercise of 1st Amendment rights without it being considered unconstitutional to do so.

What do you guys think? Have we been fortunate this apparent loophole hasn't been exploited and we have a Supreme Court that hasn't taken such a literalist approach to the 1st Amendment?

 

[Truthy]

For states, the issue is obviated by the 14th Amendment. As for the executive branch, most executive branch powers are granted by Congress. If the executive branch uses some power to violate freedom of speech, that could mean either the underlying congressional law is unconstitutional or that the statute is being abused. Alternatively, the executive branch could be violating the Fifth Amendment's Due Process Clause. After all, not all freedom of speech cases are First Amendment cases.

 

[Ajidica]

Have we been fortunate this apparent loophole hasn't been exploited and we have a Supreme Court that hasn't taken such a literalist approach to the 1st Amendment?

For someone who places such a high value on 'what the Constitution says', this has been a non-issue for over a century thanks to incorporation.

The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Prior to the doctrine's (and the Fourteenth Amendment's) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so.

After the passage of the Fourteenth Amendment, the Supreme Court favored a process called “selective incorporation.” Under selective incorporation, the Supreme Court would incorporate certain parts of certain amendments, rather than incorporating an entire amendment at once.

As a note, the Ninth Amendment and the Tenth Amendment have not been incorporated, and it is unlikely that they ever will be. The text of the Tenth Amendment directly interacts with state law, and the Supreme Court rarely relies upon the Ninth Amendment when deciding cases.

https://www.law.cornell.edu/wex/incorporation_doctrine

I mean, I learned this in 9th grade civics class. Not exactly an arcane aspect of the US Constitution.

 

[Patine]

Does the 1st Amendment really grant the sweeping freedoms we think it does? I ask because I was thinking about it and realized the 1st Amendment starts with the words " Congress shall make no law". Now if we take that as written, it would seem all the pro 1st Amendment rulings made by the Supreme Court might be wrong. As written, it would seem that federal, state, and local governments can limit the rights outlined in the 1st Amendment up to and including outright and indefinite suspensions of those rights as long as it doesn't come from the legislative branch. So if the president or a governor wanted to, say, issue an executive order banning the worship of a certain religion or establishing a state religion, it would seem such an executive order, technically, wouldn't be a violation of the 1st Amendment. It might be illegal for other reasons, but not on 1st Amendment grounds.

Or, instead of such drastic measures, the various government departments were suddenly given the same latitude to fire people based on what they say, their political opinions, etc. that private corporations have. Right now that can't happen because that is generally seen as a 1st Amendment violation, but most government departments fall under the executive branch, not the legislative branch, and thus should technically be allowed to limit the exercise of 1st Amendment rights without it being considered unconstitutional to do so.

What do you guys think? Have we been fortunate this apparent loophole hasn't been exploited and we have a Supreme Court that hasn't taken such a literalist approach to the 1st Amendment?

Well, establishing a "state religion," is outright banned in the original seven articles, as is having religion as prerequisite to hold government office.

 

[Berzerker]

yup, the 14th Amendment and the dual citizenship it created or affirmed expanded the prohibition to the states

I think this issue came up in the 1790s, the House wanted to extend the BoR to limit state and local power but it failed in the Senate. Not surprising since back then senators represented the states whereas the House represented the people.

one of the problems the courts have is deciding which amendments limit the states and how much, but the 1st has been the biggest beneficiary.

 

[Commodore]

For someone who places such a high value on 'what the Constitution says', this has been a non-issue for over a century thanks to incorporation.


https://www.law.cornell.edu/wex/incorporation_doctrine

I mean, I learned this in 9th grade civics class. Not exactly an arcane aspect of the US Constitution.

Wow. Way to resort to personal attacks and condescension with absolutely no provocation whatsoever.

The whole purpose of this thread was supposed to be how things could have gone very differently in the governance of this nation as well as a discussion on exactly what should or should not qualify as a 1st Amendment violation. Plus you obviously missed this part of my post:

. It might be illegal for other reasons, but not on 1st Amendment grounds

What you linked would fall under "illegal for other reasons". But I'm guessing you missed that while you were tripping over yourself to be nasty towards me.

 

[Ajidica]

Wow. Way to resort to personal attacks and condescension with absolutely no provocation whatsoever.

Perhaps make a better OP?

The whole purpose of this thread was supposed to be how things could have gone very differently in the governance of this nation as well as a discussion on exactly what should or should not qualify as a 1st Amendment violation. Plus you obviously missed this part of my post:

No; if a state were to pass a law forbidding anyone from criticizing the government, it would be unconstitutional under the 1st amendment because the 14th makes the 1st apply to states.

 

[Commodore]

Perhaps make a better OP?

Notice how you were the only one being nasty in this thread? That means the problem is with you, not with me or my posts. I get that you don't like me, but that doesn't mean you get to act like a jerk to me for no reason. Either be polite like everyone else or put me on your ignore list and don't respond to my posts.

 

[Timsup2nothin]

Notice how you were the only one being nasty in this thread? That means the problem is with you, not with me or my posts. I get that you don't like me, but that doesn't mean you get to act like a jerk to me for no reason. Either be polite like everyone else or put me on your ignore list and don't respond to my posts.

We are only seven posts in. It seems highly likely that someone else will come along and be just as nasty. There really isn't much else to do, since Truthy basically obliterated the premise in the first response.

 

[Commodore]

We are only seven posts in. It seems highly likely that someone else will come along and be just as nasty. There really isn't much else to do, since Truthy basically obliterated the premise in the first response.

Except there wasn't anything to obliterate. This is just a discussion, not an argument or debate. Which is the problem I think a lot of you guys have here. You all spend so much time arguing that you approach every discussion as an argument instead just being able to discuss things normally.

EDIT: Another problem I think a lot of people here have, myself included, is that you assume that just because someone puts an idea forward for discussion, that person is an advocate or supporter of that idea.

 

[Timsup2nothin]

Except there wasn't anything to obliterate. This is just a discussion, not an argument or debate. Which is the problem I think a lot of you guys have here. You all spend so much time arguing that you approach every discussion as an argument instead just being able to discuss things normally.

But there's nothing to discuss. "What if a state ignores the first amendment, since it says it only applies to the feds?"

"The fourteenth amendment says that the first amendment, along with everything else, applies to the states as well."

As a "normal" discussion all there was left for you to say at that point was "Oh."

So here we are with a thread wondering what to do with it. "Hey, let's beat up the OP, that's always fun," is a not unexpected response.

 

[Commodore]

So here we are with a thread wondering what to do with it. "Hey, let's beat up the OP, that's always fun," is a not unexpected response

Which, again, says a lot more about you as a person than it does me. And none of it is positive.

But there's nothing to discuss. "What if a state ignores the first amendment, since it says it only applies to the feds?"

"The fourteenth amendment says that the first amendment, along with everything else, applies to the states as well."

As a "normal" discussion all there was left for you to say at that point was "Oh

Well, firstly, we could discuss how that wasn't the point I made. It was more a point about the very specific wording used in the 1st Amendment and how I find it interesting the loophole that wording creates, especially before the adoption of the 14th Amendment, was never exploited since those in power always tend to find any way they can to get around those pesky little things like "laws" and "rights".

 

[Timsup2nothin]

Which, again, says a lot more about you as a person than it does me. And none of it is positive.



Well, firstly, we could discuss how that wasn't the point I made. It was more a point about the very specific wording used in the 1st Amendment and how I find it interesting the loophole that wording creates, especially before the adoption of the 14th Amendment, was never exploited since those in power always tend to find any way they can to get around those pesky little things like "laws" and "rights".

I think of it more as a statement about normal human behavior than as being about either of us, but I suppose you are such a sensitive sort that I should have expected you to take it that way.

As to the loophole...it wasn't really all that long before it was closed. Basically as soon as the 'states rights' bloc had gotten their butts handed to them it was taken care of. Before that, those "in power" were more interested in maintaining the tenuous balance that held the whole experiment in place than they were with exploiting such things, or correcting them.

But all in all "well, what if this had happened a hundred and fifty years ago, before it was disallowed for obvious reasons?" is just not a "wow, great topic" sort of thing, is it?

 

[Commodore]

I think of it more as a statement about normal human behavior than as being about either of us

The fact that you think being nasty to others is "normal" also says a lot about you. Again, none of it positive.

 

[Ajidica]

Notice how you were the only one being nasty in this thread? That means the problem is with you, not with me or my posts. I get that you don't like me, but that doesn't mean you get to act like a jerk to me for no reason. Either be polite like everyone else or put me on your ignore list and don't respond to my posts.

I'm sorry you are so sensitive some light internet trolling made you this butthurt.
Perhaps you should have let everyone know you considered this thread a safe space.

 

[Timsup2nothin]

I'm sorry you are so sensitive some light internet trolling made you this butthurt.
Perhaps you should have let everyone know you considered this thread a safe space.

I think he has pretty well belied the "you're the only one being nasty" part at this point as well.

 

[Socrates99]

*best Rave Dubin voice possible* I'm open to the marketplace of ideas. My brain is in recovery mode from all the high level ideas.

 

[Lemon Merchant]

Moderator Action: You boys can stop the trolling and bickering right now, or I will close this thread.

 

[Berzerker]

Now if we take that as written, it would seem all the pro 1st Amendment rulings made by the Supreme Court might be wrong. As written, it would seem that federal, state, and local governments can limit the rights outlined in the 1st Amendment up to and including outright and indefinite suspensions of those rights as long as it doesn't come from the legislative branch.

So if the president or a governor wanted to, say, issue an executive order banning the worship of a certain religion or establishing a state religion, it would seem such an executive order, technically, wouldn't be a violation of the 1st Amendment. It might be illegal for other reasons, but not on 1st Amendment grounds.

Or, instead of such drastic measures, the various government departments were suddenly given the same latitude to fire people based on what they say, their political opinions, etc. that private corporations have. Right now that can't happen because that is generally seen as a 1st Amendment violation, but most government departments fall under the executive branch, not the legislative branch, and thus should technically be allowed to limit the exercise of 1st Amendment rights without it being considered unconstitutional to do so.

I saw a youtube video showing an FBI veteran admitting back in the day when he started (60's-70s?) they kept left wingers out of the agency. Government employees dont really have speech/press rights, but can a President issue an executive order firing people for what they've said? We kinda do that now, each administration brings in like minded people. Can the President have a no commie policy?